Exhibit 4.8
SECOND AMENDED AND RESTATED CREDIT
AGREEMENT dated as of November 14, 1996, among
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED
PARTNERSHIP, a Delaware limited partnership
("FRP"), FREEPORT-McMoRan INC., a Delaware
corporation ("FTX"; FTX and FRP being the
"Borrowers"), the undersigned financial
institutions (collectively, the "Banks"), THE
CHASE MANHATTAN BANK (successor by merger to
Chemical Bank ("Chemical") and the Chase
Manhattan Bank (National Association)("Chase
NA")), a New York banking corporation ("Chase"),
as administrative agent for the Banks (in such
capacity, the "Administrative Agent"), as
collateral agent for the Banks (in such
capacity, the "FRP Collateral Agent") under the
FRP Security Agreement (as defined below), and
as collateral agent for the Banks and certain
other lenders (in such capacity, the "FTX
Collateral Agent") under the FTX Security
Agreement (as defined below), and as documentary
agent for the Banks (in such capacity, the
"Documentary Agent"; the Administrative Agent,
the FRP Collateral Agent, the FTX Collateral
Agent and the Documentary Agent being,
collectively, the "Agents").
FRP and FTX have requested the Banks to extend credit to FRP and to
extend credit on a secured basis to FTX in order to enable them to borrow
on a revolving credit basis at any time and from time to time prior to
the Maturity Date (as herein defined). The aggregate principal amount of
all revolving credit loans at any time outstanding hereunder shall not
exceed $350,000,000; provided that the aggregate principal amount of all
revolving credit loans to FTX at any time outstanding shall not exceed
$150,000,000. The proceeds of such borrowings are to be used for
corporate purposes of the Borrowers but may not be used to prepay
subordinated debt of the Borrowers.
The Banks are willing to make loans to FRP and secured loans to FTX
upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Agreement, the following
terms have the meanings indicated (any term defined in this Article I or
elsewhere in this Agreement in the singular and used in this Agreement in
the plural shall include the plural, and vice versa):
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit C.
"Affiliate" means, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"Agrico LP" means Agrico, Limited Partnership, a Delaware limited
partnership between FTX (as successor by liquidation to Freeport Chemical
Company), as general partner, and FRP, as limited partner.
"Alternate Base Rate" means for any day, a rate per annum (rounded
upwards, if not already a whole multiple of 1/100 of 1%, to the next
higher 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect
on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day plus 1/2 of 1%.
For purposes hereof, the term "Prime Rate" means the rate of interest per
annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in the City of New York; each change in
the Prime Rate shall be effective on the date such change is publicly
announced as being effective. "Base CD Rate" means the sum of (x) the
product of (i) the Three-Month Secondary CD Rate and (ii) Statutory
Reserves and (y) the Assessment Rate. "Three-Month Secondary CD Rate"
means, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day shall not be
a Business Day, on the next preceding Business Day) by the Administrative
Agent from three New York City negotiable certificate of deposit dealers
of recognized standing selected by it. "Federal Funds Effective Rate"
means, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate or both for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate
shall be determined without regard to clause (b) or (c), or both, of the
first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change
in the Alternate Base Rate due to a change in the Prime Rate, the Three-
Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable LIBO Rate" means on a per annum basis, in respect of any
LIBO Rate Loan, for each day during the Interest Period for such Loan,
the sum of (i) the LIBO Rate as determined by the Administrative Agent
plus (ii) the Applicable Margin.
"Applicable Margin" means, with respect to any LIBO Rate Loan or
Reference Rate Loan, or with respect to the Commitment Fees, as the case
may be, the applicable percentage for the relevant Borrower set forth on
Schedule I hereto under the caption "LIBOR Spread", "ABR Spread" or "Fee
Percentage", as the case may be, based upon the ratings by S&P and
Xxxxx'x, respectively, applicable on such date to the Index Debt. For
purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating of
BB-/Ba3, unless such rating agency shall have in effect a rating for
senior subordinated unsecured, non-credit enhanced, long-term
indebtedness for borrowed money of FRP, in which case such rating,
increased by two categories, shall be used as the Index Debt rating of
such rating agency so long as such rating agency has in effect such a
rating and does not have in effect a rating for Index Debt; (ii) if the
ratings established or deemed to have been established by Xxxxx'x and S&P
for the Index Debt shall fall within different categories, the Applicable
Margin shall be based on the lower of the two ratings unless either of
the two ratings qualifies as "investment grade", in which case the higher
of the two ratings will apply; and (iii) if the ratings established or
deemed to have been established by Xxxxx'x and S&P for the Index Debt
shall be changed (other than as a result of a change in the rating system
of Xxxxx'x or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each change
in the Applicable Margin shall apply during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations,
the Borrowers and the Banks shall negotiate in good faith to amend this
definition to reflect such changed rating system or the non-availability
of ratings from such rating agency and, pending the effectiveness of any
such amendment, the Applicable Margin shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Applicable Percentage" of any Bank means the percentage set
opposite such Bank's name on Schedule II hereto, as modified from time to
time as provided hereby.
"Applicable Reference Rate" means on a per annum basis in respect of
any Reference Rate Loan, for any day, the sum of the Alternate Base Rate
plus the Applicable Margin.
"Assessment Rate" means, with respect to each day during an Interest
Period, the annual rate (rounded upwards, if not already a whole multiple
of 1/100 of l%, to the next highest whole multiple of 1/100 of 1%) most
recently estimated by the Administrative Agent as the then current net
annual assessment rate that will be employed in determining amounts
payable by Chase to the Federal Deposit Insurance Corporation or any
successor ("FDIC") for the FDIC's insuring time deposits made in Dollars
at offices of Chase in the United States.
"Bank" means each bank signatory hereto and its successors and
permitted assigns under Section 9.3.
"Board" means the Board of Governors of the Federal Reserve System
of the United States.
"Borrowers" means FRP and FTX.
"Borrowing Date" means, with respect to any Loan, the date on which
such Loan is disbursed.
"Business Day" means any day other than a Saturday, Sunday or a day
on which banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a LIBO Rate
Loan, the term "Business Day" shall also exclude any day on which banks
are not open for dealings in Dollar deposits in the London interbank
market.
"Capitalized Lease Obligation" means the obligation of any Person to
pay rent or other amounts under a lease of (or other agreement conveying
the right to use) real and/or personal property which obligation is, or
in accordance with GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board) is required
to be, classified and accounted for as a capital lease on a balance sheet
of such Person under GAAP, and for purposes of this Agreement the amount
of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any
Person or group (within the meaning of Rule 13d-5 of the SEC as in effect
on the Closing Date) shall own directly or indirectly, beneficially or of
record, shares representing 30% or more of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of FTX; or
(b) a majority of the seats (other than vacant seats) on the board of
directors of FTX shall at any time be occupied by Persons who were not
(i) members of the board of directors of FTX on the Closing Date,
(ii) appointed as, or nominated for election as, directors by a majority
of the directors who are (x) referred to in clause (i) and (y) other
directors who are appointed or nominated in accordance with this clause
(ii) or (iii) nominated or appointed by RTZ, RTZ Indonesia or any
Affiliate of either thereof pursuant to its participation in the
Restructuring as contemplated by the Letter Agreement dated as of
March 7, 0000, xxxxxxx XXX Xxxxxxx and FTX and FCX and the Stock Purchase
Agreement.
"Circle C Agreement" means the Credit Agreement dated as of February
6, 1992, as amended, by and between Circle C Land Corp. and TCB.
"Closing Date" means July 17, 1995.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Agents" mean the FRP Collateral Agent and the FTX
Collateral Agent.
"Commitment" means, with respect to each Bank, the Commitment of
such Bank hereunder to make revolving loans as set forth on Schedule II
hereto, or in the Commitment Transfer Supplement pursuant to which such
Bank assumed its Commitment, as the same may be permanently terminated or
reduced from time to time pursuant to Section 2.7 and pursuant to
assignments by such Bank pursuant to Section 9.3. The Commitment of each
Bank shall automatically and permanently terminate on the Maturity Date.
"Commitment Fee" has the meaning assigned to such term in Section
2.6(a).
"Commitment Termination Date" has the meaning assigned to such term
in Section 2.6(a).
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement entered into by a Bank and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit D or such other form as
shall be approved by the Administrative Agent.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract
or otherwise, and "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" means the making of a Loan.
"Debt" of any Person means, without duplication, (a) all obligations
of such Person for borrowed money, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person for the unearned balance of any payment
received under any contract outstanding for 180 days, (d) all obligations
of such Person under conditional sale or other title retention agreements
relating to property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding (x) the Pennzoil Obligations,
(y) the up to $10,000,000 conditional payment of FRP to Fertiberia due in
1998 to the extent not reflected as a liability on FRP's balance sheet
under GAAP and (z) trade accounts payable and accrued obligations
incurred in the ordinary course of business so long as the same are not
180 days overdue or, if overdue, are being contested in good faith and by
appropriate proceedings), (f) all Debt of others secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (g) all
Guarantees by such Person of Debt of others, (h) all Capitalized Lease
Obligations of such Person, (i) all recourse obligations of such Person
with respect to sales of accounts receivable which would be shown under
GAAP on the balance sheet of such Person as a liability, (j) all
obligations of such Person as an account party (including reimbursement
obligations to the issuer of a letter of credit) in respect of bankers'
acceptances and letters of credit Guaranteeing Debt and (k) all non-
contingent obligations of such Person as an account party (including
reimbursement obligations to the issuer of a letter of credit) in respect
of letters of credit other than those referred to in clause (j) above.
The Debt of any Person shall include the Debt of any partnership in which
such Person is a general partner but shall exclude obligations under
leases which are characterized as Operating Leases.
"Debt to Capital Ratio" means at the end of any fiscal quarter, the
ratio, expressed as a percentage, of the aggregate principal amount of
total consolidated Debt outstanding of FRP (excluding working capital
Debt of IMC-Agrico in a principal amount not to exceed $75,000,000
multiplied by FRP's percentage capital interest in IMC-Agrico) to FRP
Capitalization.
"Deemed Lease" means an agreement characterized by the parties
thereto as a lease solely for income tax purposes and as to which such
parties have elected to have the provisions of the former
Section 168(f)(8) of the Internal Revenue Code of 1954 apply.
"Default" means any event or condition which upon the giving of
notice or lapse of time or both would become an Event of Default.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Bank, the Domestic Office set forth
for such Bank on the signature pages hereof, unless such Bank shall
designate a different Domestic Office by notice in writing to the
Administrative Agent and the Borrowers.
"EBITDA" means, for any fiscal quarter, the sum of (a) FRP's
consolidated net income (loss) (before deducting minority interests in
net income (loss) of consolidated subsidiaries, but disregarding all
extraordinary or unusual noncash items in calculating such net income);
(b) consolidated interest paid or accrued on the Loans to FRP and on
other consolidated Debt of FRP during such quarter and deducted in
determining FRP's consolidated net income; (c) FRP's consolidated
depreciation, depletion and amortization charges deducted in computing
FRP's consolidated net income; and (d) excess cash distributions as
reflected in FRP's statement of cash flows received by FRP from IMC-
Agrico; provided that such calculations of items (a) through (c) will
exclude items relating to Nonrestricted Subsidiaries.
"EBITDA Ratio" means at the end of any fiscal quarter, the
cumulative sum, for the four consecutive fiscal quarters ending with such
quarter, of (a) FRP's EBITDA to (b) interest expense and capitalized
interest paid or accrued on consolidated Debt of FRP including the Loans
and the proportional consolidation of the outstanding Debt of IMC-
Agrico, during such period.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface
or subsurface strata or as otherwise defined in any Environmental Law.
"Environmental Claim" means any written notice of violation, claim,
demand, order, directive, cost recovery action or other cause of action
by, or on behalf of, any Governmental Authority or any Person for
damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages, nuisance,
pollution, any adverse effect on the environment caused by any Hazardous
Material, or for fines, penalties or restrictions, resulting from or
based upon: (a) the existence, or the continuation of the existence, of
a Release (including sudden or non-sudden, accidental or non-accidental
Releases); (b) exposure to any Hazardous Material; (c) the presence, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Material; or (d) the violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable treaties, laws,
rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered
into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the
management, Release or threatened Release of any Hazardous Material or to
health and safety matters, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Section 9601
et seq. (collectively "CERCLA"), the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 and Hazardous and
Solid Amendments of 1984, 42 U.S.C. Section 6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977,
33 U.S.C. Section 1251 et seq., the Clean Air Act of 1970, as amended
42 U.S.C. Section 7401 et seq., the Toxic Substances Control Act of 1976,
15 U.S.C. Section 2601 et seq., the Occupational Safety and Health Act of
1970, as amended, 29 U.S.C. Section 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq., the Safe
Drinking Water Act of 1974, as amended, 42 U.S.C. Section 300(f) et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., and
any similar or implementing state or local law, and all amendments or
regulations promulgated thereunder.
"Environmental Permit" means any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from
any Governmental Authority pursuant to any Environmental Law.
"Equity Payment" means (i) any dividend or distribution on, or
purchase, redemption or other payment in respect of, the capital stock of
FTX or the partnership units of FRP, whether in cash or in kind, and
(ii) open market purchases by FTX or any Restricted Subsidiaries of
Depositary Units of FRP (as defined in FRP Partnership Agreement).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated), that together with a Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect
to a Plan; (ii) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the
Code; (iii) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code), whether or
not waived; (iv) the incurrence of any liability under Title IV of ERISA
with respect to any Plan or Multiemployer Plan, other than any liability
for contributions not yet due or payment of premiums not yet due; (v) the
receipt by a Borrower or any ERISA Affiliate from the PBGC of any notice
relating to the intention of the PBGC to terminate any Plan or Plans or
to appoint a trustee to administer any Plan; (vi) the receipt by a
Borrower or any ERISA Affiliate of any notice concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA; and (vii) any other similar event or condition with
respect to a Plan or Multiemployer Plan that could reasonably result in
liability of a Borrower.
"Event of Default" means any Event of Default defined in
Article VII.
"FCX" means Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation.
"FI" means P.T. Freeport Indonesia Company, a limited liability
company organized under the laws of Indonesia and domesticated in
Delaware.
"Financial Officer" of any corporation means the principal financial
officer, principal accounting officer, treasurer, assistant treasurer or
controller of such corporation.
"First Restatement Agreement" means the Amendment Agreement dated as
of April 25, 1996, among the Borrowers, the Banks and Chemical, as
Administrative Agent, FRP Collateral Agent and FTX Collateral Agent, and
Chase NA, as Documentary Agent.
"First Restatement Closing Date" means the date upon which the First
Restatement Agreement becomes effective in accordance with its terms.
"FM Credit Agreement" means the Credit Agreement dated as of
June 30, 1995, among FM Properties, FTX, FCX, the banks party thereto,
Chemical, as Administrative Agent and as FM Collateral Agent, and Chase
NA, as Documentary Agent, as the same may be amended or replaced from
time to time.
"FM Properties" means FM Properties Operating Co., a Delaware
general partnership whose partners are FTX and FM Properties Inc.
"FM Properties Indebtedness" means the obligations of FM Properties
under the FM Credit Agreement and the obligations of FM Properties listed
on Schedule VII hereto.
"FRP Capitalization" means the sum, as of the end of any fiscal
quarter, of the aggregate principal amount of the total consolidated Debt
outstanding of FRP (excluding working capital Debt of IMC-Agrico in a
principal amount not to exceed $75,000,000 multiplied by FRP's percentage
capital interest in IMC-Agrico) plus consolidated partners' capital
(excluding the effect of non-cash unusual or extraordinary charges after
December 31, 1994, on such partners' capital) of FRP.
"FRP Collateral Agent" means Chase in its capacity as Collateral
Agent for the Banks under the FRP Security Agreement.
"FRP Partner" means Agrico LP, FRP, FTX (provided that FTX's direct
or indirect (other than through FRP) ownership interests in IMC-Agrico
shall not exceed its ownership interests in Agrico LP as of the First
Restatement Closing Date) or another Restricted Subsidiary of FRP which
has the rights and obligations of FRP Partner as defined in and
contemplated by the IMC-Agrico Partnership Agreement.
"FRP Partnership Agreement" means the Amended and Restated Agreement
of Limited Partnership of Freeport-McMoRan Resource Partners, Limited
Partnership, dated as of May 29, 1987 among FRP, FTX and FMRP Inc., as
amended.
"FRP Security Agreement" means (i) prior to the First Restatement
Closing Date, the security agreement and mortgage in the form of
Exhibit E, executed by FRP and delivered to the FRP Collateral Agent
pursuant to Section 4.1(h), as such agreement may be amended and in
effect from time to time, and (ii) from and after the First Restatement
Closing Date, any security agreement for the benefit of the Banks between
FRP and Chase, as FRP Collateral Agent, including any such security
agreement required by Section 2.7(b)(y).
"FRP Senior Notes" means up to $150,000,000 principal amount of 7%
Senior Notes of FRP issued pursuant to the First Supplemental Indenture
dated as of February 14, 1996, to the Senior Indenture dated as of
February 1, 1996, between FRP and Chemical, as trustee.
"FTX Collateral Agent" means Chase in its capacity as collateral
agent for the Lenders (as defined in the FTX Intercreditor Agreement)
under the FTX Intercreditor Agreement and the FTX Security Agreement.
"FTX Guaranty Agreement" means the Guaranty Agreement dated as of
July 17, 1995, as such may be amended, pursuant to which FTX guarantees
all or a portion of the FM Properties Indebtedness.
"FTX Intercreditor Agreement" means the Intercreditor Agreement
entered into as of June 11, 1992, as amended and restated in its entirety
as of June 1, 1993, and as of the Funding Date in the form attached
hereto as Exhibit G, among the Administrative Agent on behalf of the
Banks, the FM Agent on behalf of the FM Lenders, Hibernia National Bank
as agent for the Pel-Tex Lenders (each as defined therein), TCB and
Chemical, as FTX Collateral Agent, as such agreement may be further
amended and in effect from time to time.
"FTX Security Agreement" means the security agreement in the form of
Exhibit F, executed by FTX and delivered to the FTX Collateral Agent
pursuant to Section 4.1(g), as such agreement may be amended and in
effect from time to time.
"Funding Date" means the first date on which the conditions to
borrowing set forth in Articles IV and VI have been satisfied.
"GAAP" has the meaning assigned to such term in Section 1.2.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory
body.
"Governmental Rule" means any statute, law, treaty, rule, code,
ordinance, regulation, permit, certificate or order of any Governmental
Authority or any judgment, decree, injunction, writ, order or like action
of any court, arbitrator or other judicial or quasijudicial tribunal.
"Guarantee" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Debt or obligation of any other
Person in any manner, whether directly or indirectly, and including,
without limitation, any agreement or obligation (i) to pay dividends or
other distributions upon the stock of such other Person, or any
obligation of such other Person, direct or indirect, (ii) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt
or obligation or to purchase (or advance or supply funds for the purchase
of) any security for the payment of such Debt, obligation, dividend or
distribution, (iii) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Debt or obligation or the
holder of such stock of the payment of such Debt, obligation, dividend or
distribution including, without limitation, any take-or-pay contract or
agreement to buy a minimum amount or quantity of production or to provide
an operating subsidy which, in each case, is utilized for a third party
financing, or (iv) to maintain working capital, equity capital or any
other financial statement condition of the primary obligor, so as to
enable the primary obligor to pay such Debt, obligation, dividend or
distribution; provided, however, that the term Guarantee shall not
include any endorsement for collection or deposit in the ordinary course
of business.
"Hazardous Materials" means all explosive or radioactive substances
or wastes, hazardous or toxic substances or wastes, pollutants, solid,
liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls
("PCBs") or PCB-containing materials or equipment, radon gas, infectious
or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedge Agreement" means any interest rate, currency or commodity
swap, cap, floor or collar agreement or similar hedging arrangement
providing for the transfer or mitigation of interest rate, commodity
price or currency value or exchange rate risks, either generally or under
specific contingencies.
"IMC" means IMC Global Operations Inc., a Delaware corporation.
"IMC-Agrico" means the general partnership formed pursuant to the
IMC-Agrico Partnership Agreement.
"IMC Partner" means the Subsidiary of IMC that has the rights and
obligations of IMC GPCo as defined in and contemplated by the IMC-Agrico
Partnership Agreement.
"IMC-Agrico Partnership Agreement" means the Amended and Restated
Partnership Agreement dated as of July 1, 1993, as further amended and
restated as of May 26, 1995, by and among Agrico LP, a Delaware limited
partnership, IMC-Agrico GP Company, a Delaware corporation, and IMC-
Agrico MP Inc., a Delaware corporation, as amended and in effect from
time to time as permitted by Section 5.2(r).
"Index Debt" means the senior, unsecured, non-credit enhanced, long-
term indebtedness for borrowed money of FRP.
"Interest Payment Date" means (i) as to any Reference Rate Loan, the
next succeeding March 31, June 30, September 30 or December 31 (subject
to Section 2.16), or if earlier, the Maturity Date, and (ii) as to any
LIBO Rate Loan, the last day of the Interest Period applicable to such
Loan (and, in the case of any Interest Period of more than three months'
duration, the date that would be the last day of such Interest Period if
such Interest Period were of three months' duration) and the date of any
continuation or conversion of such Loan as or into a Loan of the same or
a different type.
"Interest Period" means (i) as to any LIBO Rate Loan, the period
commencing on the date of such LIBO Rate Loan or on the last day of the
immediately preceding Interest Period applicable to such Loan, as the
case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the applicable
Borrower may elect, and (ii) as to any Reference Rate Loan, the period
commencing on the date of such Reference Rate Loan or on the last day of
the immediately preceding Interest Period applicable to such Loan, as the
case may be, and ending on the earliest of (x) the next succeeding
March 31, June 30, September 30 or December 31, (y) the Maturity Date and
(z) the date such Loan is prepaid or converted as permitted hereby;
provided, however, that (1) if any Interest Period would end on a day
that shall not be a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless, with respect to LIBO Rate
Loans only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (2) no Interest Period with respect to any Loan
shall end later than the Maturity Date and (3) interest shall accrue from
and including the first day of an Interest Period to but excluding the
last day of such Interest Period.
"LIBO Rate" means, with respect to any LIBO Rate Loan for any
Interest Period, an interest rate per annum (rounded upwards, if not
already a whole multiple of 1/100 of 1%, to the next higher 1/100 of 1%)
equal to the arithmetic average of the respective rates per annum at
which Dollar deposits approximately equal in principal amount to the
Reference Banks' portions of such LIBO Rate Loan and for a maturity equal
to the applicable Interest Period are offered in immediately available
funds to the principal London offices of the Reference Banks in the
London Interbank Market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"LIBO Rate Loan" means any Loan for which interest is determined, in
accordance with the provisions hereof, at the Applicable LIBO Rate.
"LIBOR Office" means, for any Bank, the LIBOR Office set forth for
such Bank on the signature pages hereof or as otherwise notified in
writing to the Administrative Agent and the Borrowers, unless such Bank
shall designate a different LIBOR Office by notice in writing to the
Administrative Agent and the Borrowers.
"Lien" means with respect to any asset, (a) a mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such
securities (except for any purchase option, call or similar right under
the FRP Partnership Agreement as in effect on the Closing Date or as
modified from time to time with the consent of the Required Banks) and
(d) other encumbrances of any kind, including, without limitation,
production payment obligations.
"Loan" means any loan made pursuant to Section 2.1.
"Loan Documents" means this Agreement, the Promissory Notes, the FTX
Intercreditor Agreement, the Security Agreements and all other
agreements, certificates and instruments now or hereafter entered into in
connection with any of the foregoing, in each case as amended and
modified from time to time.
"Loan Exposure" means the aggregate amount of unpaid principal of
all Loans made by the Banks.
"Main Pass" means FRP's interest in the Joint Operating Agreement
dated May 1, 1988, among FRP, Homestake Sulphur Company and IMC Global
Operations Inc., and the Joint Operating Agreement dated June 5, 1990,
among FRP, Homestake Sulphur Company and IMC Global Operations Inc., and
all rights and interests arising therefrom or in connection therewith and
all FRP's right, title and interest to the leases, properties and assets
subject to such Joint Operating Agreements, including those listed on
Schedule V hereto.
"Margin Stock" has the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of a Borrower and its Subsidiaries taken as a whole,
(b) material impairment of the ability of a Borrower or any of its
Subsidiaries to perform any of its obligations under any Loan Document to
which it is or will be a party or (c) material impairment of the rights
of or benefits available to the Banks under any Loan Document.
"Maturity Date" means November 13, 2001, or, if earlier, the date of
termination of the Commitments pursuant to the terms hereof.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Net Proceeds" means (i) the gross fair market value of the
consideration or other amounts payable to or receivable by FRP, any of
its Restricted Subsidiaries or IMC-Agrico in respect of any sales,
transfers, distributions or other dispositions (including by merger or
consolidation) of assets or properties (including any capital or other
equity interests owned), less (ii) the amount, if any, of all taxes (but
only to the extent such Person reasonably estimates that such taxes will
be paid on the date of the next tax filing by such Person or such
affiliate of such Person), and reasonable and customary fees,
commissions, costs and other expenses (other than those payable to FRP,
any of its Restricted Subsidiaries or IMC-Agrico) which are incurred in
connection with such sales, transfers, distributions or other
dispositions and are payable by the seller or the transferor of the
assets or property to which such sales, transfers, distributions or other
dispositions relate, but only to the extent not already deducted in
arriving at the amount referred to in clause (i), and less (iii) amounts
used within 120 days from the date of closing or effectiveness of the
original transaction in question by the seller or transferor to purchase
other assets used in the business of it and its Wholly-Owned Restricted
Subsidiaries and not pledged or encumbered to any other Person.
"1995 Form 10-K" has the meaning assigned to such term in
Section 3.1(e).
"Nonrestricted Subsidiary" means (i) any of the Subsidiaries listed
on Schedule III hereto as a Nonrestricted Subsidiary, (ii) any Subsidiary
of any Nonrestricted Subsidiary and (iii) any surviving Person (other
than a Borrower or a Restricted Subsidiary) into which any of such
Persons referred to in clause (i) or (ii) is merged or consolidated,
subject to Section 5.2(c), and (iv) any Subsidiary organized after the
date of this Agreement for the purpose of acquiring the stock or other
ownership interests or assets of another Person or for start-up ventures
or exploration programs or activities and designated as a Nonrestricted
Subsidiary by FTX as of the time of its organization. By written notice
to the Administrative Agent, FTX may (x) declare any Nonrestricted
Subsidiary to be a Restricted Subsidiary and such former Nonrestricted
Subsidiary shall thereafter be deemed to be a Restricted Subsidiary for
all purposes of this Agreement or (y) at any time other than when a
Default or Event of Default has occurred and is continuing or would exist
after giving effect to such declaration, in any fiscal year, declare one
or more Restricted Subsidiaries, the interest of FTX in all of which has
an equity value or loan investment of less than $5,000,000 in the
aggregate, to be a Nonrestricted Subsidiary and any such former
Restricted Subsidiary shall thereafter be deemed to be a Nonrestricted
Subsidiary for all purposes of this Agreement.
"Operating Lease" means any lease other than a lease giving rise to
a Capitalized Lease Obligation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Pennzoil Obligations" means the deferred purchase price obligations
incurred by FRP in connection with the purchase from Pennzoil Company of
the Xxxxxxxxx mining operations and associated physical assets.
"Permitted Investments" means customary portfolio cash management
investments made pursuant to prudent cash management practices.
"Permitted Secured Swap" means any Hedge Agreement between FTX and
any Bank or its affiliates that shall be ratably secured pursuant to the
FTX Security Agreement.
"Person" means any natural person, corporation, partnership, joint
venture, trust, incorporated or unincorporated association, joint stock
company, government (or an agency or political subdivision thereof) or
other entity of any kind.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) which is subject to the provisions of Title IV of
ERISA or Section 412 of the Code and in respect of which a Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Promissory Notes" means the promissory notes of each Borrower
referred to in Section 2.4.
"Properties" has the meaning assigned such term in
Section 3.1(n)(1).
"Reference Banks" means National Westminster Bank Plc. and Chase.
"Reference Rate Loan" means any Loan for which interest is
determined, in accordance with the provisions hereof, at the Applicable
Reference Rate.
"Register" has the meaning assigned such term in Section 9.3(d).
"Regulation D" means Regulation D of the Board as from time to time
in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation G" means Regulation G of the Board as from time to time
in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" means Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" means Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or
thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material
in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken
to: (i) cleanup, remove, treat, xxxxx or in any other way address any
Hazardous Material in the environment; (ii) prevent the Release or threat
of Release, or minimize the further Release of any Hazardous Material so
it does not migrate or endanger or threaten to endanger public health,
welfare or the environment; or (iii) perform studies and investigations
in connection with, or as a precondition to, (i) or (ii) above.
"Required Banks" means, subject to Section 9.7(b), at any time Banks
having Commitments representing at least 66-2/3% of the aggregate
Commitments hereunder or, if the Commitments have been terminated, Banks
holding Loans representing at least 66-2/3% of the aggregate principal
amount of the Loans.
"Responsible Officer" of any corporation means any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of
such corporation in respect of this Agreement.
"Restricted Subsidiary" means any Subsidiary that is not a
Nonrestricted Subsidiary; provided, however, that any Person through
which FRP owns any interest in IMC-Agrico shall at all times be a
Restricted Subsidiary.
"Restructuring" means the transactions between FTX and FCX (on the
one hand) and RTZ, RTZ Indonesia and RTZ America (on the other hand)
pursuant to the Stock Purchase Agreement, and the distribution on a
generally tax free basis (subject to exceptions approved by the
Administrative Agent and the Documentary Agent) by FTX to its
shareholders of the shares of FCX, thereby leaving FTX as a holding
company for FRP and leaving FCX as the publicly held holding company for
FI, together with arrangements required by or effectuated in connection
with such distribution with respect to existing contractual agreements
and indebtedness of FTX, FRP, FCX and FI, all on terms substantially the
same as those disclosed in writing to the Banks prior to the Closing Date
or otherwise satisfactory to the Required Banks (including all tax,
accounting, corporate and partnership matters).
"RTZ" means the RTZ Corporation PLC, a company organized under the
laws of England.
"RTZ America" means RTZ America, Inc., a Delaware corporation and a
wholly owned subsidiary of RTZ.
"RTZ Indonesia" means RTZ Indonesia Limited, a company organized
under the laws of England and a wholly owned subsidiary of RTZ.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-
Xxxx, Inc.
"SEC" means the Securities and Exchange Commission.
"Second Restatement Agreement" means the Amendment Agreement dated
as of November 14, 1996, among the Borrowers, the Banks and the Agents.
"Second Restatement Closing Date" means the date upon which the
Second Restatement Agreement becomes effective in accordance with its
terms.
"Security Agreements" means, collectively, the FRP Security
Agreement and the FTX Security Agreement.
"Shared Collateral" has the meaning assigned to such term in the FTX
Intercreditor Agreement.
"Statutory Reserves" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages
(including, without limitation, any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board
and any other banking authority, domestic or foreign, to which the
Administrative Agent or any Bank (including any branch, Affiliate, or
other funding office making or holding a Loan) is subject (a) with
respect to the Base CD Rate (as such term is used in the definition of
"Alternate Base Rate"), for new negotiable nonpersonal time deposits in
Dollars of over $100,000 with maturities approximately equal to the
applicable Interest Period, and (b) with respect to the LIBO Rate, for
Eurocurrency Liabilities (as defined in Regulation D). Such reserve
percentages shall include, without limitation, those imposed under
Regulation D. Statutory Reserves shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.
"Stock Purchase Agreement" means the Agreement dated as of May 2,
1995, by and between FTX, FCX, RTZ, RTZ Indonesia and RTZ America as
approved by the Banks and in effect on the Closing Date and as amended
from time to time as permitted by Section 5.2(t).
"Subsidiary" means as to any Person, any corporation at least a
majority of whose securities having ordinary voting power for the
election of directors (other than securities having such power only by
reason of the happening of a contingency) are at the time owned by such
Person and/or one or more other Subsidiaries of such Person and any
partnership (other than joint ventures for which the intention under the
applicable agreements, including operating agreements, if any, is that
such joint ventures be partnerships solely for purposes of the Code) in
which such Person or a Subsidiary of such Person is a general partner;
provided that unless otherwise specified, "Subsidiary" means a Subsidiary
of FTX and provided, further, that FM Properties, FM Properties, Inc.,
and IMC-Agrico shall not at any time be Subsidiaries for any purposes of
this Agreement.
"TCB" means Texas Commerce Bank National Association, a national
banking association.
"Third Party" has the meaning assigned to such term in Section
5.2(l).
"Total Commitment" means the sum of all the then effective
Commitments.
"Transfer Effective Date" has the meaning assigned to such term in
each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing Bank, as such terms
are defined in Section 9.3.
"Wholly-Owned Restricted Subsidiary" means any Subsidiary, all of
the stock of which is at the time owned by FTX, FRP and/or one or more
other Wholly-Owned Restricted Subsidiaries of either of them.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. Accounting Terms. Except as otherwise herein
specifically provided, each accounting term used herein shall have the
meaning given it under United States generally accepted accounting
principles in effect from time to time (with such changes thereto as are
approved or concurred in from time to time by the Borrowers' independent
public accountants, as applicable) applied on a basis consistent with
those used in preparing the financial statements referred to in
Section 5.1(a) ("GAAP"); provided, however, that each reference in
Section 5.2 hereof, or in the definition of any term used in Section 5.2
hereof, to GAAP shall mean generally accepted accounting principles as in
effect on the Closing Date and as applied by Borrowers in preparing the
financial statements referred to in Section 3.1(e). In the event any
change in GAAP materially affects any provision of this Agreement, the
Banks and the Borrowers agree that they shall negotiate in good faith in
order to amend the affected provisions in such a way as will restore the
parties to their respective positions prior to such change, and until
such amendment becomes effective the Borrowers' compliance with such
provisions shall be determined on the basis of GAAP as in effect
immediately before such change in GAAP became effective.
SECTION 1.3. Section, Article, Exhibit and Schedule References,
etc. Unless otherwise stated, Section, Article, Exhibit and Schedule
references made herein are to Sections, Articles, Exhibits or Schedules,
as the case may be, of this Agreement. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". Except as
otherwise expressly provided herein, any reference in this Agreement to
any Loan Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time.
ARTICLE II
The Loans
SECTION 2.1. Revolving Credit Facility. Upon the terms and subject
to the conditions and relying upon the representations and warranties
herein set forth, each Bank, severally and not jointly, agrees to make
Loans to the Borrowers, at any time and from time to time on or after the
Funding Date, and until the earlier of the Maturity Date and the
termination of the Commitment of such Bank in accordance with the terms
hereof, in an aggregate principal amount at any one time outstanding not
to exceed such Bank's Applicable Percentage of the then effective unused
Total Commitment on the Borrowing Date for such Loan. Within the
foregoing limits, the Borrowers may borrow, repay and reborrow, prior to
the Maturity Date, Loans subject to the terms, provisions and limitations
set forth herein; provided, however, that the aggregate principal amount
of all Loans to FTX at any time outstanding shall not exceed $150,000,000
or such lesser amount determined pursuant to Section 2.7.
SECTION 2.2. Loans. (a) The Loans made by the Banks to any
Borrower on any one date shall be in an aggregate principal amount which
is (i) an integral multiple of $1,000,000 and not less than $5,000,000 or
(ii) equal to the remaining available balance of the applicable
Commitments. The Loans by each Bank to each Borrower made after the
Funding Date shall be made against an appropriate Promissory Note,
payable to the order of such Bank in the amount of its Commitment,
executed by such Borrower and delivered to such Bank on the Closing Date,
as referred to in Section 2.4.
(b) Each Loan shall be either a Reference Rate Loan or a LIBO Rate
Loan as the relevant Borrower may request pursuant to Section 2.3.
Subject to the provisions of Sections 2.3 and 2.10, Loans of more than
one type may be outstanding at the same time.
(c) Each Bank shall make its portion, as determined under
Section 2.14, of each Loan hereunder on the proposed date thereof by
paying the amount required to the Administrative Agent in New York, New
York in immediately available funds not later than 2:00 p.m., New York
City time, and the Administrative Agent shall by 3:00 p.m., New York City
time, credit the amounts so received to the general deposit account of
the appropriate Borrower with the Administrative Agent or, if Loans shall
not be made on such date because any condition precedent to a borrowing
herein specified is not met, return the amounts so received to the
respective Banks. Unless the Administrative Agent shall have received
notice from a Bank prior to the date of any Loan that such Bank will not
make available to the Administrative Agent such Bank's portion of such
Loan, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Loan in
accordance with this paragraph (c) and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If the Administrative Agent shall
have so made funds available, then to the extent that such Bank shall not
have made such portion available to the Administrative Agent, such Bank
and the applicable Borrower severally agree to repay without duplication
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
made available to the applicable Borrower until the date such amount is
repaid to the Administrative Agent at an interest rate equal to (i) in
the case of the Borrower, the interest rate applicable at the time to the
Loans comprising such borrowing and (ii) in the case of such Bank, a rate
determined by the Administrative Agent to represent its cost of overnight
or short-term funds (which determination shall be conclusive absent
manifest error). If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount shall constitute such Bank's Loan
for purposes of this Agreement.
SECTION 2.3. Notice of Loans. (a) A Borrower requesting a Loan
shall give the Administrative Agent irrevocable telephonic (promptly
confirmed in writing), written, telecopy or telex notice in the form of
Exhibit B with respect to each Loan (i) in the case of a LIBO Rate Loan,
not later than 10:30 a.m., New York City time, three Business Days before
a proposed borrowing, and (ii) in the case of a Reference Rate Loan, not
later than 10:30 a.m., New York City time, on the date of a proposed
borrowing. Such notice shall be irrevocable (except that in the case of
a LIBO Rate Loan, such Borrower may, subject to Section 2.13, revoke such
notice by giving written or telex notice thereof to the Administrative
Agent not later than 10:30 a.m., New York City time, two Business Days
before such proposed borrowing) and shall in each case refer to this
Agreement and specify (1) the Borrower to which the Loan then being
requested is to be made, (2) whether the Loan then being requested is to
be a Reference Rate Loan or LIBO Rate Loan, (3) the date of such Loan
(which shall be a Business Day) and amount thereof, and (4) if such Loan
is to be a LIBO Rate Loan, the Interest Period or Interest Periods (which
shall not end after the Maturity Date) with respect thereto. If no
election as to the type of Loan is specified in any such notice by such
Borrower, such Loan shall be a Reference Rate Loan. If no Interest
Period with respect to any LIBO Rate Loan is specified in any such notice
by a Borrower, then the applicable Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the other Banks of any notice given by a
Borrower pursuant to this Section 2.3(a) and of each Bank's portion of
the requested Loan.
(b) Each Borrower may continue or convert all or any part of any
Loan as or into a Loan of the same or a different type in accordance with
Section 2.10 and subject to the limitations set forth herein. If a
Borrower shall not have delivered a borrowing notice in accordance with
this Section 2.3 prior to the end of the Interest Period then in effect
for any Loan of such Borrower requesting that such Loan be converted or
continued as permitted hereby, then such Borrower shall (unless the
Borrower has notified the Administrative Agent, not less than three
Business Days prior to the end of such Interest Period, that such Loan is
to be repaid at the end of such Interest Period) be deemed to have
delivered a borrowing notice pursuant to Section 2.3 requesting that such
Loan be converted into or continued as a Reference Rate Loan of
equivalent amount.
(c) Notwithstanding any provision to the contrary in this
Agreement, no Borrower shall in any borrowing notice under this
Section 2.3 request any LIBO Rate Loan which, if made, would result in
more than 20 separate LIBO Rate Loans of any Bank. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Loans.
SECTION 2.4. Promissory Notes. (a) The Loans made by each Bank to
each Borrower shall be evidenced by a Promissory Note duly executed on
behalf of such Borrower, dated the Closing Date, in substantially the
form attached hereto as Exhibit A, payable to the order of such Bank in a
principal amount equal to its Commitment. The outstanding principal
balance of each Loan, as evidenced by such Promissory Note, shall be
payable on the Maturity Date. Each Promissory Note shall bear interest
from the date of the first borrowing hereunder on the outstanding
principal balance thereof, as provided in Section 2.5.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Bank resulting
from each Loan made by such Bank from time to time, including the amounts
of principal and interest payable and paid to such Bank from time to time
under this Agreement. Each Bank shall, and is hereby authorized by each
Borrower to, endorse on the schedule attached to the Promissory Note
delivered by such Borrower to such Bank (or on a continuation of such
schedule attached to such Promissory Note and made a part thereof), or
otherwise record in such Bank's internal records, an appropriate notation
evidencing the date and amount of each Loan from such Bank to such
Borrower, as well as the date and amount of each payment and prepayment
with respect thereto; provided, however, that the failure of any Bank to
make such a notation or any error in such a notation shall not affect the
obligation of such Borrower to repay the Loans made by such Bank in
accordance with the terms of this Agreement and such Promissory Note.
(c) The Administrative Agent shall maintain accounts for (i) the
type of each Loan made and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become
due and payable from the applicable Borrower to each Bank hereunder and
(iii) the amount of any sum received by the Administrative Agent
hereunder from such Borrower and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.4 shall be prima facie evidence
of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Bank or the Administrative
Agent to maintain such accounts or any error therein shall not in any
manner affect the obligations of the Borrowers to repay the Loans in
accordance with their terms.
SECTION 2.5. Interest on Loans. (a) Subject to the provisions of
Section 2.8, each Reference Rate Loan shall bear interest at a rate per
annum (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be, when determined by reference
to the Prime Rate, and over a year of 360 days at all other times), equal
to the Applicable Reference Rate.
(b) Subject to the provisions of Section 2.8, each Loan which is a
LIBO Rate Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal
to the Applicable LIBO Rate for the Interest Period in effect for such
Loan.
(c) Interest on each Loan shall be payable on each applicable
Interest Payment Date. The Applicable Reference Rate and the Applicable
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error. The
Administrative Agent shall promptly advise the Borrowers and each Bank of
such determination.
SECTION 2.6. Fees. (a) The Borrowers shall pay each Bank, through
the Administrative Agent, on the last Business Day of each March, June,
September and December, and on the date on which the Commitment of such
Lender shall be terminated as provided herein (the "Commitment
Termination Date"), in immediately available funds, a commitment fee (a
"Commitment Fee") from and including the earlier of June 30, 1995, and
the Funding Date through and including the Commitment Termination Date on
the average daily amount of such Bank's Applicable Percentage of the
unused Total Commitment during the quarter (or shorter period commencing
with the earlier of June 30, 1995, and the Funding Date or ending with
the Commitment Termination Date) ending on such date equal to the
applicable Commitment Fee Percentage set forth in Schedule I hereto for
such Borrower.
(b) All Commitment Fees under this Section 2.6 shall be computed on
the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be. The Commitment Fees due to each Bank shall
cease to accrue on the earlier of the Maturity Date and the termination
of the Commitment of such Bank pursuant to Section 2.7.
(c) The Borrowers agree to pay to the Administrative Agent, for its
own account, on the Closing Date and on each anniversary thereof, an
administration fee (the "Administrative Fee") as agreed between the
Borrowers and the Administrative Agent.
(d) All such fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Banks. Once paid, all such fees shall be fully
earned under any and all circumstances.
SECTION 2.7. Maturity and Reduction of Commitments.
(a) Upon at least five days' prior written, telecopied or telex
notice to the Administrative Agent, the Borrowers may without penalty at
any time in whole permanently terminate, or from time to time permanently
reduce, the Total Commitment, ratably among the Banks in accordance with
the amounts of their respective Commitments; provided, however, that each
partial reduction of the Commitment Amount shall be in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further, that the Total Commitment may not be reduced to an
amount which is less than the aggregate principal amount of all Loans
outstanding after such reduction.
(b) The Total Commitment shall be automatically and permanently
reduced by an amount equal to (I) the Net Proceeds of any non-ordinary
course asset disposition by FRP and its Restricted Subsidiaries and
IMC-Agrico (other than in each case, (i) dispositions of obsolete and
worn-out property or real estate not used or useful in its business,
(ii) sales of accounts receivable and (iii) sales of any IMC-Agrico
assets to the extent not resulting in distributable cash to FRP or its
Restricted Subsidiaries), in excess of a cumulative aggregate amount of
$25,000,000 for all such transactions during the term of this Agreement
after the First Restatement Closing Date, and (II) the net proceeds of
any issuance of Debt to any Third Party by FRP or its Restricted
Subsidiaries during the term of this Agreement after March 1, 1996 (other
than (A) Guarantees where no proceeds of the related Debt are received by
FRP or its Restricted Subsidiaries, (B) Debt described in clauses (i),
(ii), (iii), (iv), (v), (vi), (vii), (viii), (xi), (xii) and (xiii) of
Section 5.2(g), (C) Capitalized Lease Obligations where a related asset
sale has already been counted for purposes of this Section 2.7(b), (D)
Debt described in clauses (ix) and (x) of Section 5.2(g) in an aggregate
principal amount not in excess of $75,000,000 and (E) Debt described in
clause (x) of Section 5.2(g) to the extent that the proceeds of such Debt
are used to refinance Debt of FTX or FRP, other than Debt under this
Agreement, which is outstanding at the time of the incurrence of such
additional Debt. The Total Commitment shall also be automatically and
permanently reduced by an amount equal to such portion of the proceeds of
any equity issuance (other than pursuant to employee stock option plans
and similar arrangements and other than equity issued to fund a permitted
acquisition) by FRP and the Restricted Subsidiaries to any Person other
than the Borrowers and the Restricted Subsidiaries as the Required Banks
and the Borrowers shall agree prior to the time of receipt of Net
Proceeds in respect of such equity issuance; provided that, if such
agreement shall not be reached prior to the time of such receipt, the
applicable portion shall be 50%. The Commitment reductions required by
this Section 2.7(b) shall be effective as of the date of closing or
effectiveness of any transaction subject hereto; provided that with
respect to any non-cash Net Proceeds, such Commitment reductions shall be
effective as of the earlier of (x) the date of receipt of cash proceeds
thereof and (y) the first anniversary of the date of closing or
effectiveness of such transaction, subject to any such non-cash proceeds
in excess of $5,000,000 being pledged to the FRP Collateral Agent as
additional collateral for the Loans and other obligations under the Loan
Documents, pursuant to a security agreement between FRP and the FRP
Collateral Agent in a form reasonably satisfactory to the FRP Collateral
Agent; and provided further that to the extent prepayment of any LIBO
Rate Loan is required pursuant to this Section 2.7(b), such prepayment
may be made at the end of the current Interest Period for such LIBO Rate
Loan if the required prepayment would otherwise give rise to breakage
costs under Section 2.13(a)(i).
(c) On the Maturity Date, the Commitments shall automatically
terminate and any outstanding Loans shall be due and payable in full.
SECTION 2.8. Interest on Overdue Amounts; Alternative Rate of
Interest. (a) If any Borrower shall default in the payment of the
principal of or interest on any Loan or any other amount becoming due
hereunder or under any other Loan Document, by acceleration or otherwise,
such Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount up to the date of
actual payment (after as well as before judgment):
(i) in the case of the payment of principal of or interest on a
LIBO Rate Loan, at a rate 2% above the rate which would otherwise be
payable under Section 2.5(b) until the last date of the Interest
Period then in effect with respect to such Loan and thereafter as
provided in clause (ii) below; and
(ii) in the case of the payment of principal of or interest on
a Reference Rate Loan or any other amount payable hereunder (other
than principal of or interest on any LIBO Rate Loan to the extent
referred to in clause (i) above), at a rate 2% above the Applicable
Reference Rate.
(b) In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a LIBO
Rate Loan the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers absent
manifest error) that (i) Dollar deposits in the requested principal
amount of such LIBO Rate Loan are not generally available in the London
Interbank Market, (ii) the rates at which Dollar deposits are being
offered will not adequately and fairly reflect the cost to any Bank of
making or maintaining such LIBO Rate Loan during such Interest Period or
(iii) reasonable means do not exist for ascertaining the Applicable LIBO
Rate, the Administrative Agent shall as soon as practicable thereafter
give written, telecopied or telex notice of such determination to the
Borrowers and the other Banks, and any request by a Borrower for the
making of a LIBO Rate Loan pursuant to Section 2.3 or 2.10 shall, until
the Administrative Agent shall have advised the Borrowers and the Banks
that the circumstances giving rise to such notice no longer exist, be
deemed to be a request for a Reference Rate Loan; provided, however, that
if the Administrative Agent makes the determination specified in
(ii) above, at the option of such Borrower such request shall be deemed
to be a request for a Reference Rate Loan only from such Bank referred to
in (ii) above; provided further, however, that such option shall not be
available to such Borrower if the Administrative Agent makes the
determination specified in (ii) above with respect to three or more
Banks. Each determination of the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.9. Prepayment of Loans. (a) Each Borrower shall have
the right at any time and from time to time to prepay any of its Loans,
in whole or in part, subject to the requirements of Section 2.13 but
otherwise without premium or penalty, upon prior written or telex notice
to the Administrative Agent by 10:30 a.m., New York City time, on the
date of such prepayment; provided, however, that each such partial
prepayment shall be in a minimum amount of $5,000,000 and an integral
multiple of $1,000,000.
(b) In the event of any termination of the Commitments, each
Borrower shall repay or prepay all its outstanding Loans on the date of
such termination. On the date of any partial reduction of the
Commitments pursuant to Section 2.7, the Borrowers shall pay or prepay so
much of their respective Loans as shall be necessary in order that the
aggregate principal amount of the Loans (after giving effect to any other
prepayment of Loans on such date) outstanding will not exceed the Total
Commitment immediately following such reduction.
(c) All prepayments under this Section 2.9 shall be subject to
Section 2.13. Each notice of prepayment delivered pursuant to
paragraph (a) above shall specify the prepayment date and the principal
amount of each Loan (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower giving such notice to prepay
such Loan by the amount stated therein on the date stated therein. All
prepayments shall be applied first to Reference Rate Loans and then to
LIBO Rate Loans and shall be accompanied by accrued interest on the
principal amount being prepaid to the date of prepayment. Any amounts
prepaid may be reborrowed to the extent permitted by the terms of this
Agreement.
SECTION 2.10. Continuation and Conversion of Loans. Each Borrower
shall have the right, subject to the provisions of Section 2.8, (i) on
three Business Days' prior irrevocable notice by such Borrower to the
Administrative Agent, to continue or convert any type of Loans as or into
LIBO Rate Loans, or (ii) with irrevocable notice by such Borrower to the
Administrative Agent by 10:30 a.m. on the date of such proposed
continuation or conversion, to continue or convert any type of Loans as
or into Reference Rate Loans, in each case subject to the following
further conditions:
(a) each continuation or conversion shall be made pro rata as
to each type of Loan of a Borrower to be continued or converted
among the Banks in accordance with the respective amounts of their
commitments and the notice given to the Administrative Agent by such
Borrower shall specify the aggregate principal amount of Loans to be
continued or converted;
(b) in the case of a continuation or conversion of less than
all Loans of any Borrower, the Loans continued or converted shall be
in a minimum aggregate principal amount of $5,000,000 and an
integral multiple of $1,000,000;
(c) accrued interest on each Loan (or portion thereof) being
continued or converted shall be paid by such Borrower at the time of
continuation or conversion;
(d) the Interest Period with respect to any Loan made in
respect of a continuation or conversion thereof shall commence on
the date of the continuation or conversion;
(e) any portion of a Loan maturing or required to be prepaid in
less than one month may not be continued as or converted into a LIBO
Rate Loan;
(f) a LIBO Rate Loan may be continued or converted on the last
day of the applicable Interest Period and, subject to Section 2.13,
on any other day;
(g) no Loan (or portion thereof) may be continued as or
converted into a LIBO Rate Loan if, after such continuation or
conversion, an aggregate of more than 20 separate LIBO Rate Loans of
any Bank would result, determined as set forth in Section 2.3(c);
(h) no Loan shall be continued or converted if such Loan by any
Bank would be greater than the amount by which its Commitment
exceeds the amount of its other Loans at the time outstanding or if
such Loan would not comply with the other provisions of this
Agreement; and
(i) any portion of a LIBO Rate Loan which cannot be converted
into or continued as a LIBO Rate Loan by reason of clause (e) or (g)
above shall be automatically converted at the end of the Interest
Period in effect for such Loan into a Reference Rate Loan.
The Administrative Agent shall communicate the information contained in
each irrevocable notice delivered by the applicable Borrower pursuant to
this Section 2.10 to the other Banks promptly after its receipt of the
same.
The Interest Period applicable to any LIBO Rate Loan resulting from
a continuation or conversion shall be specified by the applicable
Borrower in the irrevocable notice of continuation or conversion
delivered pursuant to this Section 2.10; provided, however, that if no
such Interest Period for a LIBO Rate Loan shall be specified, the
applicable Borrower shall be deemed to have selected an Interest Period
of one month's duration.
For purposes of this Section 2.10, notice received by the
Administrative Agent from a Borrower after 10:30 a.m., New York time, on
a Business Day shall be deemed to be received on the immediately
succeeding Business Day.
SECTION 2.11. Reserve Requirements; Change in Circumstances.
(a) The Borrowers shall pay to each Bank on the last day of each
Interest Period for any LIBO Rate Loan so long as such Bank may be
required to maintain reserves against Eurocurrency Liabilities as defined
in Regulation D of the Board (or so long as such Bank may be required to
maintain reserves against any other category of liabilities which
includes deposits by reference to which the interest rate on any LIBO
Rate Loan is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Bank which
includes any LIBO Rate Loan) an additional amount (determined by such
Bank and notified to the Borrowers), equal to the product of the
following for each affected LIBO Rate Loan for each day during such
Interest Period:
(i) the principal amount of such affected LIBO Rate Loan
outstanding on such day; and
(ii) the remainder of (x) the product of Statutory Reserves on
such date times the Applicable LIBO Rate on such day minus (y) the
Applicable LIBO Rate on such day; and
(iii) 1/360.
Each Bank shall separately xxxx the Borrowers directly for all amounts
claimed pursuant to this Section 2.11(a).
(b) Notwithstanding any other provision herein, if after the
Closing Date any change in condition or applicable law or regulation or
in the interpretation or administration thereof (whether or not having
the force of law and including, without limitation, Regulation D of the
Board) by any Governmental Authority charged with the administration or
interpretation thereof shall occur which shall:
(i) subject any Bank (which shall for the purpose of this
Section include any assignee or lending office of any Bank) to any
tax of any kind whatsoever with respect to its LIBO Rate Loans or
other fees or amounts payable hereunder or change the basis of
taxation of any of the foregoing (other than taxes (including Non-
Excluded Taxes) described in Section 2.17 and other than any
franchise tax or tax or other similar governmental charges, fees or
assessments based on the overall net income of such Bank by the U.S.
Federal government or by any jurisdiction in which such Bank
maintains an office, unless the presence of such office is solely
attributable to the enforcement of any rights hereunder or under any
Security Document with respect to an Event of Default);
(ii) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of or credit extended by any Bank;
(iii) impose on any such Bank or the London Interbank Market
any other condition affecting this Agreement or LIBO Rate Loans made
by such Bank; or
(iv) impose upon any Bank any other condition with respect to
any amount paid or to be paid by any Bank with respect to its LIBO
Rate Loans or this Agreement;
and the result of any of the foregoing shall be to increase the cost to
any Bank of making or maintaining its LIBO Rate Loans or Commitment
hereunder, or to reduce the amount of any sum (whether of principal,
interest or otherwise) received or receivable by such Bank or to require
such Bank to make any payment, in respect of any such Loan, in each case
by or in an amount which such Bank in its sole judgment shall deem
material, then the Borrower to which such Loan was made shall pay to such
Bank on demand such an amount or amounts as will compensate the Bank for
such additional cost, reduction or payment.
(c) If any Bank shall have determined that the applicability of any
law, rule, regulation, agreement or guideline adopted after the Closing
Date regarding capital adequacy, or any change after the Closing Date in
any such law, rule, regulation, agreement or guideline (whether such law,
rule, regulation, agreement or guideline has been adopted) or in the
interpretation or administration of any of the foregoing by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank)
or any Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority made or issued after the Closing Date, has or
would have the effect of reducing the rate of return on such Bank's
capital or on the capital of such Bank's holding company, if any, as a
consequence of this Agreement or the Loans made pursuant hereto to a
level below that which such Bank or such Bank's holding company could
have achieved but for such applicability, adoption, change or compliance
(taking into consideration such Bank's policies and the policies of such
Bank's holding company with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time the Borrowers
shall pay to such Bank such additional amount or amounts as will
compensate such Bank or such Bank's holding company for any such
reduction suffered.
(d) If and on each occasion that a Bank makes a demand for
compensation pursuant to paragraph (a), (b) or (c) above, or under
Section 2.17 (it being understood that a Bank may be reimbursed for any
specific amount under only one such paragraph or Section) the Borrowers
may, upon at least three Business Days' prior irrevocable written or
telex notice to each of such Bank and the Administrative Agent, in whole
permanently replace the Commitment of such Bank; provided that such
notice must be given not later than the 90th day following the date of a
demand for compensation made by such Bank; and provided that the
Borrowers shall replace such Commitment with the Commitment of a
commercial bank satisfactory to the Administrative Agent. Such notice
from the Borrowers shall specify an effective date for the termination of
such Bank's Commitment which date shall not be later than the 180th day
after the date such notice is given. On the effective date of any
termination of such Bank's Commitment pursuant to this clause (d), the
Borrowers shall pay to the Administrative Agent for the account of such
Bank (A) any Commitment Fees on the amount of such Bank's Commitment so
terminated accrued to the date of such termination, (B) the principal
amount of any outstanding Loans held by such Bank plus accrued interest
on such principal amount to the date of such termination and (C) the
amount or amounts requested by such Bank pursuant to clause (a), (b) or
(c) above or Section 2.17, as applicable. The Borrowers will remain
liable to such terminated Bank for any loss or expense that such Bank may
sustain or incur as a consequence of such Bank's making any LIBO Rate
Loan or any part thereof or the accrual of any interest on any such Loan
in accordance with the provisions of this Section 2.11(d) as set forth in
Section 2.13. Upon the effective date of termination of any Bank's
Commitment pursuant to this Section 2.11(d) such Bank shall cease to be a
"Bank" hereunder; provided that no such termination of any such Bank's
Commitment shall affect (i) any liability or obligation of the Borrowers
or any other Bank to such terminated Bank which accrued on or prior to
the date of such termination or (ii) such terminated Bank's rights
hereunder in respect of any such liability or obligation.
(e) A certificate of a Bank (or Transferee) setting forth such
amount or amounts as shall be necessary to compensate such Bank (or
Transferee) as specified in paragraph (a), (b) or (c) (and in the case of
paragraph (c), such Bank's holding company) above or Section 2.17, as the
case may be, shall be delivered as soon as practicable to the Borrowers,
and in any event within 90 days of the change giving rise to such amount
or amounts, and shall be conclusive absent manifest error. The
appropriate Borrower shall pay each Bank the amount shown as due on any
such certificate within 15 days after its receipt of the same. In
preparing such a certificate, each Bank may employ such assumptions and
allocations of costs and expenses as it shall in good xxxxx xxxx
reasonable. The failure of any Bank (or Transferee) to give the required
90 day notice shall excuse the Borrowers from their obligations to pay
additional amounts pursuant to such Sections incurred for the period that
is 90 days or more prior to the date such notice was required to be
given.
(f) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or
reduction in return on capital within the 90 days required pursuant to
Section 2.11(e) shall not constitute a waiver of such Bank's rights to
demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital for any period
after the date that is 90 days prior to the date of the delivery of
demand for compensation. The protection of this Section 2.11 shall be
available to each Bank regardless of any possible contention of
invalidity or inapplicability of the law, regulation or condition which
shall have occurred or been imposed. No Borrower shall be required to
make any additional payment to any Bank pursuant to Section 2.11(a) or
(b) in respect of any such cost, reduction or payment that could be
avoided by such Bank in the exercise of reasonable diligence, including a
change in the lending office of such Bank if possible without material
cost to such Bank. Each Bank agrees that it will promptly notify the
Borrowers and the Administrative Agent of any event of which the
responsible account officer shall have knowledge which would entitle such
Bank to any additional payment pursuant to this Section 2.11. The
Borrowers agree to furnish promptly to the Administrative Agent official
receipts evidencing any payment of any tax.
SECTION 2.12. Change in Legality. (a) Notwithstanding anything to
the contrary herein contained, if after the Closing Date any change in
any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation
thereof shall make it unlawful for any Bank to make or maintain any LIBO
Rate Loan or to give effect to its obligations as contemplated hereby
with respect to any LIBO Rate Loan, then, by written notice to the
Borrowers and to the Administrative Agent, such Bank may:
(i) declare that LIBO Rate Loans will not thereafter (for the
duration of such unlawfulness or impracticality) be made by such
Bank hereunder, whereupon the Borrowers shall be prohibited from
requesting LIBO Rate Loans from such Bank hereunder unless such
declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBO Rate Loans made by it be
converted to Reference Rate Loans, in which event (A) all such LIBO
Rate Loans shall be automatically converted to Reference Rate Loans
as of the end of the applicable Interest Period, unless an earlier
conversion date is legally required, (B) all payments and
prepayments of principal which would otherwise have been applied to
repay the converted LIBO Rate Loans shall instead be applied to
repay the Reference Rate Loans resulting from the conversion of such
LIBO Rate Loans and (C) the Reference Rate Loans resulting from the
conversion of such LIBO Rate Loans shall be prepayable only at the
times the converted LIBO Rate Loans would have been prepayable,
notwithstanding the provisions of Section 2.9.
(b) Before giving any notice to the Borrowers and the
Administrative Agent pursuant to this Section 2.12, such Bank shall
designate a different LIBOR Office if such designation will avoid the
need for giving such notice and will not in the judgment of such Bank, be
otherwise disadvantageous to such Bank. For purposes of Section 2.12(a),
a notice to the Borrowers by any Bank shall be effective on the date of
receipt by the Borrowers.
SECTION 2.13. Indemnity. Each Borrower shall indemnify each Bank
against any funding, redeployment or similar loss or expense which such
Bank may sustain or incur as a consequence of (a) any event, other than a
default by such Bank in the performance of its obligations hereunder,
which results in (i) such Bank receiving or being deemed to receive any
amount on account of the principal of any LIBO Rate Loan prior to the end
of the Interest Period in effect therefor (any of the events referred to
in this clause (i) being called a "Breakage Event") or (ii) any Loan to
be made by such Bank not being made after notice of such Loan shall have
been given by such Borrower hereunder or (b) any default in the making of
any payment or prepayment of any amount required to be made hereunder.
In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Bank, of (i) its
cost of obtaining funds for the Loan which is the subject of such
Breakage Event for the period from the date of such Breakage Event to the
last day of the Interest Period in effect (or which would have been in
effect) for such Loan over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or converted or not borrowed,
continued or converted by making a LIBO Rate Loan in such principal
amount and with a maturity comparable to such period. A certificate of
any Bank setting forth any amount or amounts which such Bank is entitled
to receive pursuant to this Section shall be delivered to the Borrowers
and shall be conclusive absent manifest error.
SECTION 2.14. Pro Rata Treatment. Except as permitted under any of
Sections 2.8(b), 2.11, 2.12, 2.13 or 2.17, each borrowing under each type
of Loan, each payment or prepayment of principal of the Loans, each
payment of interest on the Loans, each other reduction of the principal
or interest outstanding under the Loans, however achieved, including by
setoff by any Person, each payment of the Commitment Fees, each reduction
of the Commitments and each conversion or continuation of Loans shall be
allocated pro rata among the Banks in the proportions that their
respective Commitments bear to the Total Commitment (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Bank
agrees that in computing such Bank's portion of any borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each
Bank's percentage of such borrowing to the next higher or lower whole
Dollar amount.
SECTION 2.15. Sharing of Setoffs. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Borrower or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or other similar
law or otherwise, or by any other means obtain payment (voluntary or
involuntary) in respect of any Loan of any Borrower held by it as a
result of which the unpaid principal portion of the Loans of such
Borrower held by it shall be proportionately less than the unpaid
principal portion of the Loans of such Borrower held by any other Bank
(other than as permitted under any of Sections 2.8(b), 2.11, 2.12, 2.13
or 2.17), it shall be deemed to have simultaneously purchased from such
other Bank at face value, and shall promptly pay to such other Bank the
purchase price for, a participation in the Loans of such Borrower held by
such other Bank, so that the aggregate unpaid principal amount of the
Loans of such Borrower and participation in Loans of such Borrower held
by each Bank shall be in the same proportion to the aggregate unpaid
principal amount of all Loans of such Borrower then outstanding as the
principal amount of the Loans of such Borrower held by it prior to such
exercise of banker's lien, setoff or counterclaim was to the principal
amount of all Loans of such Borrower outstanding prior to such exercise
of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be
made pursuant to this Section 2.15 and the payment giving rise thereto
shall thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price
or prices or adjustment restored without interest. To the fullest extent
permitted by applicable law, each Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a participation
in a Loan of either Borrower deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by such Borrower hereunder to such
Bank as fully as if such Bank had made a Loan directly to such Borrower
in the amount of such participation.
SECTION 2.16. Payments. (a) Except as otherwise provided in this
Agreement, all payments and prepayments to be made by either Borrower to
the Banks hereunder, whether on account of Commitment Fees, payment of
principal or interest on the Promissory Notes or other amounts at any
time owing hereunder or under any other Loan Document, shall be made to
the Administrative Agent at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, for the account of the several Banks in immediately available
funds. All such payments shall be made to the Administrative Agent as
aforesaid not later than 10:30 a.m., New York City time, on the date due;
and funds received after that hour shall be deemed to have been received
by the Administrative Agent on the following Business Day.
(b) As promptly as possible, but no later than 2:00 p.m., New York
City time, on the date of each borrowing, each Bank participating in the
Loans made on such date shall pay to the Administrative Agent such Bank's
Applicable Percentage of such Loan plus, if such payment is received by
the Administrative Agent after 2:00 p.m., New York City time, on the date
of such borrowing, interest at a rate per annum equal to the rate in
effect on such day, quoted by the Administrative Agent at its office at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, for the overnight "sale" to such
Bank of Federal funds. At the time of, and by virtue of, such payment,
such Bank shall be deemed to have made its Loan in the amount of such
payment. The Administrative Agent agrees to pay any moneys, including
such interest, so paid to it by the lending Banks promptly, but no later
than 3:00 p.m., New York City time, on the date of such borrowing, to the
appropriate Borrower in immediately available funds.
(c) If any payment of principal, interest, Commitment Fee or any
other amount payable to the Banks hereunder or under any Promissory Note
shall fall due on a day that is not a Business Day, then (except in the
case of payments of principal of or interest on LIBO Rate Loans, in which
case such payment shall be made on the next preceding Business Day if the
next succeeding Business Day would fall in the next calendar month) such
due date shall be extended to the next succeeding Business Day, and
interest shall be payable on principal in respect of such extension.
(d) Unless the Administrative Agent shall have been notified by the
Borrowers prior to the date on which any payment or prepayment is due
hereunder (which notice shall be effective upon receipt) that the
Borrowers do not intend to make such payment or prepayment, the
Administrative Agent may assume that the Borrowers have made such payment
or prepayment when due and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to each
Bank on such date an amount equal to the portion of such assumed payment
or prepayment such Bank is entitled to hereunder, and, if the Borrowers
have not in fact made such payment or prepayment to the Administrative
Agent, such Bank shall, on demand, repay to the Administrative Agent the
amount made available to such Bank, together with interest thereon in
respect of each day during the period commencing on the date such amount
was made available to such Bank and ending on (but excluding) the date
such Bank repays such amount to the Administrative Agent, at a rate per
annum equal to the rate, determined by the Administrative Agent to
represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error).
(e) All payments of the principal of or interest on the Loans or
any other amounts to be paid to any Bank or the Administrative Agent
under this Agreement or any of the other Loan Documents shall be made in
Dollars, without reduction by reason of any currency exchange expense.
SECTION 2.17. U.S. Taxes. (a) Any and all payments by any
Borrower hereunder shall be made, in accordance with Section 2.16, free
and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto imposed by the United States or any
political subdivision thereof, excluding taxes imposed on the net income
of an Agent or any Bank (or Transferee) and franchise taxes of an Agent
or any Bank (or Transferee), as applicable, as a result of a connection
between the jurisdiction imposing such taxes and such Agent or such Bank
(or Transferee), as applicable, other than a connection arising solely
from such Agent or such Bank (or Transferee), as applicable, having
executed, delivered, performed its obligations or received a payment
under, or enforced, this Agreement (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Non-Excluded Taxes"). If any Borrower shall
be required by law to deduct any Non-Excluded Taxes from or in respect of
any sum payable hereunder to the Banks (or any Transferee) or an Agent,
(i) the sum payable shall be increased by the amount necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.17) such Bank (or
Transferee) or an Agent (as the case may be) shall receive an amount
equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to receive any
greater payment under this Section 2.17 than such Bank would have been
entitled to receive with respect to the rights assigned, participated or
otherwise transferred unless such assignment, participation or transfer
shall have been made at a time when the circumstances giving rise to such
greater payment did not exist.
(b) In addition, the Borrowers agree to bear and to pay to the
relevant Governmental Authority in accordance with applicable law any
current or future stamp or documentary taxes or any other similar excise
taxes, charges or similar levies that arise from any payment made
hereunder or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Agreement or any other Loan
Document and any property taxes that arise from the enforcement of this
Agreement or any other Loan Document ("Other Taxes").
(c) The Borrowers will indemnify each Bank (or Transferee) and each
Agent for the full amount of Non-Excluded Taxes and Other Taxes
(including Non-Excluded Taxes or Other Taxes imposed on amounts payable
under this Section 2.17) paid by such Bank (or Transferee) or such Agent,
as the case may be, and any liability (including penalties, interest and
expenses (including reasonable attorney's fees and expenses)) arising
therefrom or with respect thereto. A certificate as to the amount of
such payment or liability prepared by a Bank or Agent, or the
Administrative Agent on behalf of such Bank or Agent, absent manifest
error, shall be final, conclusive and binding for all purposes. Such
indemnification shall be made within 30 days after the date such Bank (or
Transferee) or such Agent, as the case may be, makes written demand
therefor.
(d) Within 30 days after the date of any payment of Non-Excluded
Taxes or Other Taxes by any Borrower to the relevant Governmental
Authority, such Borrower will furnish to the Administrative Agent, at its
address referred to on the signature page, the original or a certified
copy of a receipt issued by such Governmental Authority evidencing
payment thereof.
(e) At the time it becomes a party to this Agreement or a
Transferee, each Bank (or Transferee) that is organized under the laws of
a jurisdiction outside the United States shall (in the case of a
Transferee, subject to the immediately succeeding sentence) deliver to
the Borrowers either a valid and currently effective Internal Revenue
Service Form 1001 or Form 4224 or, in the case of a Bank (or Transferee)
claiming exemption from U.S. Federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a
Form W-8, or any subsequent version thereof or successors thereto, (and
if such Bank (or Transferee) delivers a Form W-8, a certificate
representing that such Bank (or Transferee) is not a bank for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrowers and is not
a controlled foreign corporation related to the Borrowers (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Bank (or Transferee) establishing that such payment is
(i) not subject to United States Federal withholding tax under the Code
because such payment is effectively connected with the conduct by such
Bank (or Transferee) of a trade or business in the United States or
(ii) totally exempt from (or in case of a Transferee, entitled to a
reduced rate of) United States Federal withholding tax. Notwithstanding
any other provision of this Section 2.17(e), no Transferee shall be
required to deliver any form pursuant to this Section 2.17(e) that such
Transferee is not legally able to deliver. In addition, each Bank (or
Transferee) shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered, but only, in such case, to
the extent such Bank (or Transferee) is legally able to do so.
(f) Notwithstanding anything to the contrary contained in this
Section 2.17, no Borrower shall be required to pay any additional amounts
to any Bank (or Transferee) in respect of United States Federal
withholding tax pursuant to paragraph (a) above if the obligation to pay
such additional amounts would not have arisen but for a failure by such
Bank (or Transferee) to comply with the provisions of paragraph (e)
above.
(g) Any Bank (or Transferee) claiming any additional amounts
payable pursuant to this Section 2.17 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Borrowers or to change the
jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue and would not, in the
sole determination of such Bank, be otherwise disadvantageous to such
Bank (or Transferee).
(h) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this
Section 2.17 shall survive the payment in full of the principal of and
interest on all Loans made hereunder.
(i) Nothing contained in this Section 2.17 shall require any Bank
(or Transferee) or the Administrative Agent to make available any of its
income tax returns (or any other information that it deems to be
confidential or proprietary).
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties. As of the Funding
Date and each other date upon which such representations and warranties
are required to be made or deemed made pursuant to Section 6.1(i),
(i) FTX represents and warrants with respect to itself and (ii) FTX and
FRP jointly and severally represent and warrant with respect to FRP, in
each case to each of the Banks, as follows:
(a) Organization, Powers. Each Borrower (i) is duly
organized, validly existing and in good standing under the laws of
the State of Delaware, (ii) has the requisite power and authority to
own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, and (iii) is qualified to
do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not have a
material adverse effect on its condition, financial or otherwise.
Each Borrower has the power to execute, deliver and perform its
obligations under this Agreement and the other Loan Documents to
which it is or is to be a party, to borrow hereunder and to execute
and deliver any Promissory Notes to be delivered by it. Each
Borrower has all requisite corporate or partnership power, and has
all material governmental licenses, authorizations, consents and
approvals necessary to own its own assets and carry on its business
as now being or as proposed to be conducted.
(b) Authorization. The execution, delivery and performance of
this Agreement (including, without limitation, performance of the
obligations set forth in Section 5.1(k)) and the other Loan
Documents to which each Borrower is or is to be, a party and the
borrowings hereunder (i) have been duly authorized by all requisite
corporate or partnership and, if required, stockholder or partner,
action on the part of each Borrower, as the case may be, and
(ii) will not (A) violate (x) any Governmental Rule or the
certificate or articles of incorporation or limited partnership or
other constitutive documents or the By-laws, partnership agreement
or regulations of such Person or (y) any provisions of any
indenture, agreement or other instrument to which such Person is a
party, or by which such Person or any of their respective properties
or assets are or may be bound, (B) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or
both) a default under any indenture, agreement or other instrument
referred to in (ii)(A)(y) above or (C) result in the creation or
imposition of any Lien, charge or encumbrance of any nature
whatsoever upon any property or assets of such Person, except as
contemplated by the Security Agreements.
(c) Governmental Approvals. Except for those consents,
approvals and registrations listed on Schedule IV hereto, each of
which has been obtained and is in full force and effect, no
registration with or consent or approval of, or other action by, any
Governmental Authority is or will be required in connection with the
execution, delivery and performance by either Borrower of this
Agreement or any other Loan Document to which it is, or is to be, a
party or the borrowings hereunder by either Borrower. Other than
routine authorizations, permissions or consents which are of a minor
nature and which are customarily granted in due course after
application or the denial of which would not materially adversely
affect the business, financial condition or operations of either
Borrower, such Person has all franchises, licenses, certificates,
authorizations, approvals or consents from all national, state and
local governmental and regulatory authorities required to carry on
its business as now conducted and as proposed to be conducted.
(d) Enforceability. This Agreement and each of the other Loan
Documents to which it is a party constitutes a legal, valid and
binding obligation of each Borrower, in each case enforceable in
accordance with its respective terms (subject, as to the enforcement
of remedies against such Person, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting
creditors' rights against such Person generally in connection with
the bankruptcy, reorganization or insolvency of such Person or a
moratorium or similar event relating to such Person).
(e) Financial Statements. FTX has heretofore furnished to
each of the Banks consolidated balance sheets and statements of
operations and changes in retained earnings and cash flow as of and
for the fiscal years ended December 31, 1994 and 1995, all audited
and certified by Xxxxxx Xxxxxxxx LLP, independent public
accountants, included in FTX's Annual Report on Form 10-K for the
year ended December 31, 1995 (the "1995 Form 10-K"), and unaudited
consolidated balance sheets and statements of operations and cash
flow as of and for the fiscal quarter ended June 30, 1996 included
in FTX's Quarterly Report on Form 10-Q for the quarter ended June
30, 1996. In addition, FRP has heretofore furnished to each of the
Banks consolidated balance sheets and statements of operations and
cash flow for FRP as of and for the fiscal years ended December 31,
1994 and 1995, all audited and certified by Xxxxxx Xxxxxxxx LLP and
unaudited consolidated balance sheets and statements of operations
and cash flow for FRP as of and for the fiscal quarter ended June
30, 1996. All such balance sheets and statements of operations and
cash flow present fairly the financial condition and results of
operations of FTX and its Subsidiaries or of FRP and its
Subsidiaries, as applicable, as of the dates and for the periods
indicated. Such financial statements and the notes thereto disclose
all material liabilities, direct or contingent, of FTX and its
Subsidiaries or of FRP and its Subsidiaries, as applicable, as of
the dates thereof which are required to be disclosed in the
footnotes to financial statements prepared in accordance with GAAP.
The financial statements referred to in this Section 3.1(e) have
been prepared in accordance with GAAP. There has been no material
adverse change since December 31, 1995, in the businesses, assets,
operations, prospects or condition, financial or otherwise, of
(i) FTX, (ii) FRP, (iii) FTX and its Subsidiaries taken as a whole
or (iv) FRP and its Subsidiaries taken as a whole.
(f) Litigation; Compliance with Laws; etc. (i) Except as
disclosed in the 1995 Form 10-K and any subsequent reports filed as
of 20 days prior to the Closing Date with the SEC on Form 10-Q or
Form 8-K which have been delivered to the Banks, there are no
actions, suits or proceedings at law or in equity or by or before
any governmental instrumentality or other agency or regulatory
authority now pending or, to the knowledge of the Borrowers,
threatened against or affecting the Borrowers or any Subsidiary or
the businesses, assets or rights of the Borrowers or any Subsidiary
(i) which involve this Agreement or any of the other Loan Documents
or any of the transactions contemplated hereby or thereby or any
collateral for the Loans or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if adversely
determined, could, individually or in the aggregate, materially
impair the ability of FTX or FRP to conduct its business
substantially as now conducted, or materially and adversely affect
the businesses, assets, operations, prospects or condition,
financial or otherwise, of FTX or FRP, or impair the validity or
enforceability of, or the ability of FTX or FRP to perform its
obligations under, this Agreement or any of the other Loan Documents
to which it is a party.
(ii) Neither the Borrowers nor any Subsidiary is in violation
of any Governmental Rule, or in default with respect to any
judgment, writ, injunction, decree, rule or regulation of
Governmental Authority, where such violation or default could result
in a Material Adverse Effect.
(g) Title, etc. The Borrowers and the Subsidiaries have good
and valid title to their respective material properties, assets and
revenues (exclusive of oil, gas and other mineral properties on
which no development or production activities are being conducted
following discovery of commercially exploitable reserves), in the
case of the Borrowers and their Restricted Subsidiaries, free and
clear of all Liens except such Liens as are permitted by
Section 5.2(d) and except for covenants, restrictions, rights,
easements and minor irregularities in title which do not
individually or in the aggregate interfere with the occupation, use
and enjoyment by the respective Borrower or the respective
Restricted Subsidiary of such properties and assets in the normal
course of business as presently conducted or materially impair the
value thereof for use in such business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither of the Borrowers nor any Subsidiary is engaged
principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying Margin
Stock.
(ii) No part of the proceeds of the Loans will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the
Regulations of the Board, including, without limitation,
Regulations G, U or X thereof.
(iii) Each Borrower will use the proceeds of all Loans made to
it to refinance borrowings by it under the Existing Credit Agreement
and for its ongoing general corporate purposes and for acquisition
transactions permitted hereunder (including acquisitions of FRP
units).
(iv) As of the Funding Date (A) the collateral subject to the
FTX Security Agreement (1) constitutes Margin Stock with a current
market value (within the meaning of Regulation U) at least equal to
twice the aggregate amount of credit secured, directly or indirectly
(within the meaning of Regulation U), by such Margin Stock on such
date or (2) constitutes collateral which is not Margin Stock ("Other
Collateral") with a current market value (within the meaning of
Regulation U) at least equal to twice the aggregate amount of credit
secured, directly or indirectly (within the meaning of
Regulation U), by such Other Collateral (including, in each case, as
credit secured for such purpose the entire amount of the Commitments
to make Loans to FTX), and (B) there are no Liens on such Margin
Stock or such Other Collateral, as the case may be (other than those
created by the FTX Security Agreement).
(i) Taxes. The Borrowers and the Subsidiaries have filed or
caused to be filed all material Federal, state, local and foreign
tax returns which are required to be filed by them, and have paid or
caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by any of them, other than
any taxes or assessments the validity of which the relevant Borrower
or Subsidiary is contesting in good faith by appropriate
proceedings, and with respect to which the relevant Borrower or
Subsidiary shall, to the extent required by GAAP, have set aside on
its books adequate reserves.
(j) Employee Benefit Plans. Each of the Borrowers and its
ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred
or is reasonably expected to occur that, when taken together with
all other such ERISA Events, could materially and adversely affect
the financial condition and operations of the Borrowers and the
ERISA Affiliates, taken as a whole. The present value of all
benefit liabilities under each Plan, determined on a plan
termination basis (based on those assumptions used for financial
disclosure purposes in accordance with Statement of Financial
Accounting Standards No. 87 of the Financial Accounting Standards
Board ("SFAS 87") did not, as of the last annual valuation date
applicable thereto, exceed by more than $5,000,000 the value of the
assets of such Plan, and the present value of all benefit
liabilities of all underfunded Plans, determined on a plan
termination basis (based on those assumptions used for financial
disclosure purposes in accordance with SFAS 87) did not, as of the
last annual valuation dates applicable thereto, exceed by more than
$5,000,000 the value of the assets of all such underfunded Plans.
(k) Investment Company Act. Neither Borrower nor any
Subsidiary is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended
from time to time.
(l) Public Utility Holding Company Act. Neither Borrower nor
any Subsidiary is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended from time
to time.
(m) Subsidiaries. Schedule III constitutes a complete and
correct list, as of the Closing Date or the date of any update
thereof required by Section 5.1(a)(5), of all Restricted
Subsidiaries with at least $1,000,000 in total assets, indicating
the jurisdiction of incorporation or organization of each
corporation or partnership and the percentage of shares or units
owned on such date directly or indirectly by FTX in each. Each
entity shown as a parent company owns on such date, free and clear
of all Liens (other than the Liens required or permitted by Section
3.1(o) and Section 5.2(d)(iii), (iv) and (viii)), the percentage of
voting shares or partnership interests outstanding of its Restricted
Subsidiaries shown on Schedule III, and all such shares or
partnership interests are validly issued and fully paid.
(n) Environmental Matters. (1) The properties owned or
operated by the Borrowers and their Subsidiaries and by IMC-Agrico
(the "Properties") and all operations of the Borrowers and their
Subsidiaries and IMC-Agrico are in compliance, and in the last three
years have been in compliance, with all Environmental Laws and all
necessary Environmental Permits have been obtained and are in
effect, except to the extent that such non-compliance or failure to
obtain any necessary permits, in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect;
(2) there have been no Releases or threatened Releases at,
from, under or proximate to the Properties or otherwise in
connection with the operations of the Borrowers or their
Subsidiaries or IMC-Agrico, which Releases or threatened
Releases, in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(3) neither the Borrowers nor any of their Subsidiaries
nor IMC-Agrico has received any notice of an Environmental
Claim in connection with the Properties or the operations of
the Borrowers or their Subsidiaries or IMC-Agrico or with
regard to any Person whose liabilities for environmental
matters the Borrowers or their Subsidiaries or IMC-Agrico has
retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect,
nor do the Borrowers or their Subsidiaries have reason to
believe that any such notice will be received or is being
threatened; and
(4) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of the
Properties in a manner that could give rise to liability under
any Environmental Law, nor have the Borrowers or their
Subsidiaries or IMC-Agrico retained or assumed any liability,
contractually, by operation of law or otherwise, with respect
to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage
or disposal, or retained or assumed liabilities, in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect.
The representations set forth in this Section 3.1(n) with respect to
IMC-Agrico are given to the best knowledge after due inquiry of the
Borrowers and their Subsidiaries (which shall be deemed to include
the actual knowledge of Crescent Technology, Inc.).
(o) Security Documents. (i) The FTX Security Agreement is
effective to create in favor of the FTX Collateral Agent, for the
ratable benefit of the parties to the FTX Intercreditor Agreement, a
legal, valid and enforceable security interest in the Shared
Collateral (as defined in the FTX Security Agreement); the Shared
Collateral has been delivered to the FTX Collateral Agent on or
before the Funding Date and the FTX Security Agreement constitutes a
fully perfected first priority Lien on, and security interests in,
all right, title and interest of the pledgors thereunder in such
Shared Collateral and the proceeds thereof, in each case prior and
superior in right to any other Person subject to the restriction on
conversion of Unit Equivalents referred to in Section 5.2(d)(viii).
(ii) At all times when it shall be required hereunder, the FRP
Security Agreement shall be effective to create in favor of the FRP
Collateral Agent, for the ratable benefit of the Banks, a legal,
valid and enforceable security interest in the Collateral (as
defined in the FRP Security Agreement) and, if such filing is
required under applicable law, when financing statements in
appropriate form are filed in the appropriate offices, the FRP
Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the grantor
thereunder in such Collateral and the proceeds thereof, in each case
prior and superior in right to any other Person, except, with
respect to the FRP Security Agreement as in effect prior to the
First Restatement Closing Date, as provided in Articles 34, 35 and
36 of the FRP Security Agreement.
(p) No Material Misstatements. No information, report
(including any exhibit, schedule or other attachment thereto or
other document delivered in connection therewith), financial
statement, exhibit or schedule prepared or furnished by either
Borrower to the Administrative Agent or any Bank in connection with
this Agreement or any of the other Loan Documents or included
therein or any information provided to Cravath, Swaine & Xxxxx in
connection with the preparation of the environmental due diligence
summary memorandum referred to in paragraph (m) of Article IV
contained or contains any material misstatement of fact or omitted
or omits to state any material fact necessary to make the statements
therein, taken as a whole in the light of the circumstances under
which they were made, not misleading.
ARTICLE IV
Conditions to Initial Credit Event
Subject to satisfaction of the conditions to each Credit Event
required by Section 6.1, the Borrowers may not borrow Loans hereunder
until the first date (the "Funding Date") upon which the following
conditions have been satisfied:
(a) Each Bank shall have received its duly executed Promissory
Notes complying with the provisions of Section 2.4.
(b) The Administrative Agent and the Documentary Agent shall
have received, on behalf of themselves and the Banks, a favorable
written opinion of (i) the General Counsel of FTX, substantially to
the effect set forth in Exhibit H, (ii) Xxxxx Xxxx & Xxxxxxxx,
counsel for the Borrowers, substantially to the effect set forth in
Exhibit I and (iii) Liskow & Xxxxx, special Louisiana counsel for
the Borrowers, substantially to the effect set forth in Exhibit J,
in each case (A) dated the Funding Date, (B) addressed to the Agents
and the Banks, and (C) covering such other matters relating to the
Restructuring, the Loan Documents and the transactions contemplated
thereby as the Administrative Agent and the Documentary Agent shall
reasonably request, and the Borrowers hereby instruct such counsel
to deliver such opinions.
(c) All legal matters incident to this Agreement, the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Banks and to Cravath,
Swaine & Xxxxx, special counsel for the Agents.
(d) The Administrative Agent and the Documentary Agent shall
have received (i) a copy of the certificate of incorporation or
partnership certificate (as applicable), including all amendments
thereto, of each Borrower, certified as of a recent date by the
Secretary of State of the state of its organization, and a
certificate as to the good standing of each Borrower as of a recent
date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of each Borrower dated the Funding
Date and certifying (A) that attached thereto is a true and complete
copy of the by-laws or partnership agreement (as applicable) of such
Borrower as in effect on the Funding Date and at all times since a
date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Borrower
(in the case of FRP, the Board of Directors of its managing general
partner) authorizing the execution, delivery and performance of the
Loan Documents to which such Person is a party and the borrowings
hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate of incorporation and by-laws or partnership certificate
and partnership agreement (as applicable) of such Borrower have not
been amended since the date of the last amendment thereto shown on
the certificate of good standing furnished pursuant to clause (i)
above or the date of the certificate furnished pursuant to clause
(ii) above, as applicable, and (D) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such
Borrower; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above; and
(iv) such other documents as the Banks or Cravath, Swaine & Xxxxx,
special counsel for the Agents, may reasonably request.
(e) The Administrative Agent and the Documentary Agent shall
have received a certificate, dated the Funding Date and signed by a
Financial Officer of each Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (i) and (iii) of
Section 6.1.
(f) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Funding Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrowers hereunder or under any other Loan Document.
(g) The FTX Security Agreement shall have been duly executed
by the parties thereto and delivered to the FTX Collateral Agent and
shall be in full force and effect, and the Unit Equivalents (as
defined in the FRP Partnership Agreement) in FRP owned by FTX and
required to be pledged under the FTX Security Agreement shall have
been duly and validly pledged thereunder to the FTX Collateral Agent
for the ratable benefit of the parties to the FTX Intercreditor
Agreement.
(h) The FRP Security Agreement shall have been duly executed
by the parties thereto and shall have been delivered to the FRP
Collateral Agent and shall be in full force and effect on such date
and each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the FRP Collateral Agent for the benefit of the
Banks a valid, legal and perfected first-priority security interest
in and lien on the Collateral described in such agreement (subject
only to the Liens described in Section 5.2(d)(viii) of the FRP
Security Agreement and Articles 34, 35 and 36 of the FRP Security
Agreement and Schedule A to the FRP Security Agreement) shall have
been delivered to the FRP Collateral Agent.
(i) The Restructuring shall have been completed on a generally
tax-free basis (subject to exceptions approved by the Administrative
Agent and the Documentary Agent), including arrangements in
connection with the Restructuring with respect to existing
indebtedness of FTX, FRP, FCX and FI, all on terms substantially the
same as those described in Schedule XI or otherwise satisfactory to
the Required Banks (including all tax, accounting, corporate and
partnership matters), and the Administrative Agent and the
Documentary Agent shall have received satisfactory opinions of
counsel with respect to the Restructuring, its tax status and
related matters as they shall reasonably request.
(j) In connection with the Restructuring, all Debt of FTX
shall have been repaid and cancelled (or, in the case of the
Existing Credit Agreement, refunded by borrowings hereunder) and all
Guarantees of Debt by FTX (other than the Guarantees referred to in
Section 5.2(g)(xi)) shall have been released.
(k) Closing and satisfaction of the conditions to initial
borrowing under a new $200,000,000 Chemical/Chase Bank credit
facility for FI and FCX and the amendment and restatement of the
existing $550,000,000 Chemical/Chase Bank credit facility for FI
shall have occurred substantially simultaneously with the Funding
Date.
(l) All outstanding loans under the Existing Credit Agreement
shall have been repaid in full and the Existing Credit Agreement and
the commitments of the banks party thereto shall have been
terminated.
(m) The Administrative Agent shall have received an
environmental due diligence summary memorandum in form, scope and
substance reasonably satisfactory to the Banks, from Cravath,
Swaine & Xxxxx as to certain environmental hazards, liabilities or
Remedial Action to which IMC-Agrico, the Borrowers or their
Subsidiaries may be subject.
(n) The Borrowers shall have delivered to the Administrative
Agent statements in conformity with the requirements of Federal
Reserve Form U-1 referred to in Regulation U.
(o) The Stock Purchase Agreement shall be in full force and
effect in the form as in effect on the Closing Date or as amended as
permitted by Section 5.2(t).
ARTICLE V
Covenants
SECTION 5.1. Affirmative Covenants of the Borrowers. Each of the
Borrowers covenants and agrees with each Bank and Agent that from and
after the Funding Date and so long as this Agreement shall remain in
effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all fees and all other expenses or amounts
payable under any Loan Document shall have been paid in full, that,
unless the Required Banks otherwise provide prior written consent:
(a) Financial Statements, etc. The Borrowers shall furnish
each Bank:
(1) within 95 days after the end of each fiscal year, a
consolidated balance sheet of such Borrower and its
Subsidiaries and of IMC-Agrico as at the close of such fiscal
year and consolidated statements of operation and changes in
retained earnings or partners' capital and cash flow of it and
its Subsidiaries and of IMC-Agrico for such year, with the
opinion thereon of Xxxxxx Xxxxxxxx LLP (Xxxxx & Xxxxx LLP, in
the case of IMC-Agrico) or other independent public accountants
of national standing selected by it or IMC-Agrico, as
applicable, to the effect that such consolidated financial
statements fairly present the financial condition and results
of operations of such Borrower and IMC-Agrico, as applicable,
on a consolidated basis in accordance with GAAP consistently
applied, except as disclosed in such auditor's report;
(2) within 50 days after the end of each of the first
three quarters of each of its fiscal years, a consolidated
balance sheet of such Borrower and its Subsidiaries and of IMC-
Agrico as at the end of such quarter and consolidated
statements of income of it and its Subsidiaries and of IMC-
Agrico, for such quarter and for the period from the beginning
of the fiscal year to the end of such quarter, certified in the
case of each Borrower by a Financial Officer of FTX as fairly
presenting the financial condition and results of operations of
the Borrowers on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit
adjustments;
(3) promptly after their becoming available, (a) copies of
all financial statements, reports and proxy statements which
such Borrower shall have sent to its stockholders or
unitholders generally, (b) copies of all registration
statements (excluding registration statements relating to
employee benefit plans) and regular and periodic reports, if
any, which it shall have filed with the SEC, or any
governmental agency substituted therefor, and (c) if requested
by any Bank, copies of each annual report filed with any
Governmental Authority pursuant to ERISA with respect to each
Plan of such Borrower or any of the Subsidiaries;
(4) promptly upon the occurrence of any Default or Event
of Default, the occurrence of any default under any other Loan
Document, the commencement of any proceeding regarding the
Borrowers or any of their Subsidiaries or IMC-Agrico under any
Federal or state bankruptcy law, any other development that has
resulted in, or could reasonably be expected to result in, a
Material Adverse Effect, notice thereof, describing the same in
reasonable detail;
(5) at the time of provision of the financial statements
referred to in clauses (1) and (2) above, an update of
Schedule III to correct, add or delete any required
information; and
(6) from time to time, such further information regarding
the business, affairs and financial condition of the Borrowers
or any Subsidiary or IMC-Agrico as any Bank may reasonably
request.
At the time the Borrowers furnish financial statements pursuant to
the foregoing clauses (1) and (2), FRP will also furnish each Bank a
certificate signed by its Treasurer or other authorized Financial
Officer setting forth the calculation of: (a) its current ratio as
determined in accordance with Section 5.2(e), (b) its EBITDA Ratio
as determined in accordance with Section 5.2(f) and (c) its Debt to
Capital Ratio determined in accordance with Section 5.2(h) and the
Borrowers will furnish a certificate by their Treasurers or other
authorized Financial Officer certifying that no Default or Event of
Default has occurred, or if such a Default or Event of Default has
occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect
thereto.
(b) Taxes and Claims. The Borrowers shall, and shall cause
each of its Subsidiaries to, pay and discharge all taxes,
assessments and governmental charges or levies, imposed upon it or
upon its income or profits, or upon any property belonging to it,
prior to the date on which material penalties attach thereto;
provided that neither Borrower nor any Subsidiary shall be required
to pay any such tax, assessment, charge or levy, the payment of
which is being contested in good faith by proper proceedings and
with respect to which such Borrower or such Subsidiary shall have,
to the extent required by GAAP, set aside on its books adequate
reserves and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a
Lien.
(c) Maintenance of Existence; Conduct of Business. Each
Borrower shall preserve and maintain its corporate or partnership
existence and all its rights, privileges and franchises necessary or
desirable in the normal conduct of its business; provided that
nothing herein shall prevent any transaction permitted by
Section 5.2(c).
(d) Compliance with Applicable Laws. Each Borrower shall, and
shall cause each of its Subsidiaries to, comply with the
requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority, a breach of which would materially
and adversely affect its consolidated financial condition or
business, except where contested in good faith and by proper
proceedings and with respect to which such Borrower or Subsidiary
shall have, to the extent required by GAAP, set aside on its books
adequate reserves.
(e) Litigation. The Borrowers shall promptly give to each
Bank notice in writing of all litigation and all proceedings before
any Governmental Authority or arbitration authorities affecting the
Borrowers or any Subsidiary or IMC-Agrico, except those which, if
adversely determined, do not relate to the Loan Documents and which
would not have a material adverse effect on the business, assets,
operations or financial condition of the Borrowers or IMC-Agrico or
the Borrowers' ability to comply with their obligations under the
Loan Documents.
(f) ERISA. Each Borrower shall, and shall cause each of its
ERISA Affiliates to, comply in all material respects with the
applicable provisions of ERISA and the Code and furnish to the
Administrative Agent as soon as possible, and in any event within
30 days after any Responsible Officer of the Borrowers or any ERISA
Affiliate knows or has reason to know that, any ERISA Event has
occurred that alone or together with any other ERISA Event could
reasonably be expected to result in liability of the Borrowers in an
aggregate amount exceeding $25,000,000 or requires payment exceeding
$10,000,000 in any year, a statement of a Financial Officer of such
Borrower setting forth details as to such ERISA Event and the action
that such Borrower proposes to take with respect thereto.
(g) Compliance with Environmental Laws. Each Borrower shall
comply, and cause its Subsidiaries and all lessees and other Persons
occupying the Properties to comply, in all material respects with
all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all material
Environmental Permits necessary for its operations and Properties;
and conduct any Remedial Action in accordance with Environmental
Laws; provided, however, that none of the Borrowers or any of their
Subsidiaries shall be required to undertake any Remedial Action to
the extent that its obligation to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(h) Preparation of Environmental Reports. If a default caused
by reason of a breach of Section 3.1(n) or 5.1(g) shall have
occurred and be continuing, at the request of the Required Banks
through the Administrative Agent, the Borrowers shall provide to
Banks within 45 days after such request, at the expense of the
Borrowers, an environmental site assessment report for the
Properties (which are the subject of such default) prepared by an
environmental consulting firm acceptable to the Administrative
Agent, indicating the presence or absence of Hazardous Materials and
the estimated cost of any compliance or Remedial Action in
connection with such Properties.
(i) Insurance. The Borrowers and each Restricted Subsidiary
shall (i) keep its insurable properties adequately insured at all
times; (ii) maintain such other insurance, to such extent and
against such risks, including fire, flood and other risks insured
against by extended coverage, as is customary with companies in the
same or similar businesses; (iii) maintain in full force and effect
public liability insurance against claims for personal injury or
death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it
in such amount as it shall reasonably deem necessary; and
(iv) maintain such other insurance as may be required by law.
(j) Access to Premises and Records. The Borrowers and each
Subsidiary shall maintain financial records in accordance with GAAP,
and, at all reasonable times and as often as any Bank may reasonably
request, permit representatives of any Bank to have access to its
financial records and its premises and to the records and premises
of any of its Subsidiaries and to make such excerpts from and copies
of such records as such representatives deem necessary and to
discuss its affairs, finances and accounts with its officers and its
independent certified public accountants or other parties preparing
consolidated or consolidating statements for it or on its behalf.
(k) Further Assurances. Each Borrower shall, and shall cause
its Subsidiaries to, execute any and all further documents,
financing statements, agreements and instruments, and take all
further actions (including filing Uniform Commercial Code financing
statements), which may be required under applicable law, or which
the Required Banks, the Administrative Agent or the Documentary
Agent may reasonably request, in order to effectuate the
transactions contemplated by this Agreement and the other Loan
Documents and in order to grant, preserve, protect and perfect the
validity and first priority of the security interests created by the
Security Agreements. The Borrowers agree to provide such evidence
as the Collateral Agents shall reasonably request as to the
perfection and priority status of each such security interest and
Lien.
(l) Covenants Regarding FRP. FTX shall cause FRP to perform
the covenants relating to FRP set forth in Sections 5.1 and 5.2.
SECTION 5.2. Negative Covenants of the Borrowers. Each of the
Borrowers covenants and agrees with each Bank and Agent that, from and
after the Funding Date and so long as this Agreement shall remain in
effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all fees and all other expenses or amounts
payable under any Loan Document have been paid in full, that, without the
prior written consent of the Required Banks:
(a) Conflicting Agreements. Each Borrower shall not and shall
cause its Restricted Subsidiaries not to enter into any agreement
with any Person containing any provision which (i) would be violated
or breached by the performance of their obligations under any Loan
Document or under any instrument or document delivered or to be
delivered by them hereunder or thereunder or in connection herewith
or therewith, (ii) would prohibit or restrict, FRP or the other
Restricted Subsidiaries or IMC-Agrico in the payment of dividends or
other distributions or (iii) would prohibit or restrict the ability
of FTX, FRP, the other Restricted Subsidiaries or IMC-Agrico to
create Liens on any of their assets (other than assets which are
subject to Liens permitted pursuant to paragraphs (ii), (iii), (iv),
(vi), (vii) and (viii) of Section 5.2(d) and extensions and renewals
and replacements thereof to the extent permitted pursuant to
Section 5.2(d)(x) and the Liens permitted by paragraphs (ii) and (v)
of Section 5.2(r)); provided that IMC-Agrico may be subject to
negative pledge, dividend payment and financial covenant provisions
no more restrictive than those in effect on the Closing Date, and
FRP may be subject to the limitations of Section 3.7 of the First
Supplemental Indenture dated as of February 14, 1996, to the Senior
Indenture dated as of February 1, 1996, between FRP and Chemical, as
trustee, as in effect on March 1, 1996. Notwithstanding the
limitations set forth in the immediately preceding sentence, FRP and
any special purpose issuing Restricted Subsidiary of FRP may, in
connection with the placement or issuance of additional Debt
specifically permitted by Section 5.2(g)(and any refinancings or
replacements of or exchanges for such additional Debt), enter into
agreements containing a covenant essentially identical to that set
forth in Section 3.7 of the First Supplemental Indenture referred to
in the immediately preceding sentence; provided that (w) a copy of
such covenant be provided to the Agents prior to the issuance of
such Debt, (x) the placement or issuance of such additional Debt
does not contravene any other provision of any Loan Documents, (y)
the terms of such covenant are approved by the Agents if such terms
are not identical to those set forth in such Section 3.7 and (z) the
placement or issuance of such additional Debt does not contravene
any provision of such First Supplemental Indenture to the extent
that the Senior Notes (as referred to in Section 3.7 of such First
Supplemental Indenture) are not wholly or permanently repaid in
full.
(b) Hedge Transactions. The Borrowers and the Restricted
Subsidiaries will enter into or become obligated with respect to
Hedge Agreements only in the ordinary course of business to hedge or
protect against actual or reasonably anticipated exposures and not
for speculation.
(c) Consolidation or Merger; Disposition of Assets and Capital
Stock. Each Borrower shall not, and shall not permit any Restricted
Subsidiary or IMC-Agrico to, merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate
with it, or sell, lease, transfer or otherwise dispose of (in one
transaction or a series of transactions) all or any substantial part
of its assets (whether now owned or hereafter acquired) or any
capital stock or other ownership interests of any Restricted
Subsidiary, except for (i) the investments permitted by
Section 5.2(r), (ii) dispositions of accounts receivable and
dispositions of inventory in the ordinary course of business,
(iii) dispositions of obsolete or worn-out property, or real estate
not used or useful in its business, (iv) subject to Section 5.2(o)
and (p), dispositions of assets by the Borrowers or a Restricted
Subsidiary to another Restricted Subsidiary or a Borrower,
(v) subject to Section 5.2(l), dispositions of assets by a Borrower
or a Restricted Subsidiary to a Third Party, (vi) to the extent
permitted by Section 5.2(q), the payment of dividends in cash or
kind by a Borrower or any Restricted Subsidiary, (vii) subject to
Section 2.7(b), sale and leaseback transactions, (viii) the
transactions comprising the Restructuring and (ix) investments in
Permitted Investments and dispositions thereof; and except that:
(x) the Borrowers or any Restricted Subsidiary may merge
or liquidate any other Person (other than, in the case of a
Restricted Subsidiary, FTX or FRP) into itself;
(y) any Restricted Subsidiary (other than FRP) may be
merged into any other Person; provided that such other Person,
immediately following such merger, shall be deemed a Restricted
Subsidiary; and
(z) subject to Sections 2.7(b) and 5.2(j), the Borrowers
or any Restricted Subsidiary may sell or otherwise dispose of
(including by merger or consolidation) any assets or securities
of any Subsidiary (other than (A) a 50.1% ownership interest in
FRP on a fully diluted basis pledged pursuant to the FTX
Security Agreement, (B) a 50.1% ownership interest on a fully
diluted basis in Main Pass, (C) the applicable percentage
ownership interest on a fully diluted basis in IMC-Agrico set
forth on Schedule IX hereto (provided that Agrico LP may be
replaced with another FRP Partner in accordance with the terms
of this Agreement, including Section 5.2(r)(vi)), and (D) non-
cash proceeds pledged as required by Section 2.7(b));
provided, however, that in the case of a merger permitted by
clause (x) above, immediately thereafter and giving effect thereto,
such Borrower or, as the case may be, a Restricted Subsidiary would
be the surviving Person and, in the case of a merger permitted by
clause (x) or clause (y) above or of any disposition of assets or
securities permitted by clause (z) above, no Default or Event of
Default would, immediately thereafter and giving effect thereto,
have occurred and be continuing. Each sale or other disposition
permitted by clause (z) above shall be permitted only if the
Borrower or the respective Restricted Subsidiary shall receive fair
consideration therefor, as determined by the Board of Directors of
the Borrower or of such Restricted Subsidiary, as the case may be,
and certified by its Treasurer or another of its Financial Officers
to the Administrative Agent. It is understood and agreed that no
transaction pursuant to a Deemed Lease (as in effect on the Closing
Date or as amended from time to time with the approval of the
Administrative Agent) shall be considered a disposition of assets
within the meaning of this Section 5.2(c).
(d) Liens. Each Borrower shall not, nor shall it permit any
of its Restricted Subsidiaries to, create, incur, assume, or suffer
to exist any Lien upon any of its respective properties, revenues or
assets (including stock or other securities of any Person, including
any Subsidiary), now owned or hereafter acquired, except:
(i) required margin deposits on permitted Hedge Agreements
and foreign currency exchange agreements, surety and appeal
bonds and materialmen's, suppliers', tax and other like Liens
arising in the ordinary course of its or such Restricted
Subsidiary's business securing obligations which are not
overdue or are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been set
aside on its books to the extent required by GAAP, Liens
arising in connection with workers' compensation, unemployment
insurance and progress payments under government contracts, and
other Liens incident to the ordinary conduct of its or such
Restricted Subsidiary's business or the ordinary operation of
property or assets and not incurred in connection with the
obtaining of any Debt or Guarantee;
(ii) Liens on assets or properties not owned as of the
Closing Date by a Borrower or any Restricted Subsidiary
securing only purchase money Debt of such Borrower or such
Restricted Subsidiary permitted by Section 5.2(g)(vii), which
Liens are limited to the specific property the purchase of
which is financed by such Debt;
(iii) Liens, existing at the time of the acquisition by a
Borrower or any Restricted Subsidiary of the majority of the
capital stock or other ownership interests or substantially all
of the assets of any other Person or existing at the time of
the merger of any such other Person into a Borrower or a
Restricted Subsidiary, on such capital stock or other ownership
interests or assets so acquired or on the assets of the Person
so merged into such Borrower or such Restricted Subsidiary;
provided, however, that such acquisition or merger (and the
discharge of such Liens referred to in the immediately
succeeding proviso) shall not otherwise result in an Event of
Default or Default; and provided further that all such Liens
shall be discharged within 180 days after the date of the
respective acquisition or merger;
(iv) Liens in favor of the Administrative Agent or the
Banks or in favor of the FTX Collateral Agent as provided in
the FTX Intercreditor Agreement and the FTX Security Agreement,
Liens in favor of TCB and the Pel-Tex Lenders as permitted by
the FTX Intercreditor Agreement, and Liens in favor of the FRP
Collateral Agent as provided in the FRP Security Agreement, all
as contemplated by Section 3.1(o);
(v) Liens listed on Schedule VIII hereto securing
obligations of a Borrower or a Restricted Subsidiary under
Deemed Leases (as in effect on the Closing Date or as amended
from time to time with the approval of the Administrative
Agent);
(vi) Liens (as in effect on the Closing Date) securing
the Pennzoil Obligations on only the related assets purchased
from Pennzoil Company;
(vii) Liens of lessors of property (in such capacity)
leased by a Borrower or a Restricted Subsidiary pursuant to an
Operating Lease or a permitted Capitalized Lease Obligation,
which Lien in any such case is limited to the property leased
thereunder;
(viii) the reciprocal collateral mortgages and rights of
first refusal granted by FRP on Main Pass to its joint venture
partners, the right of first offer granted by FRP on IMC-Agrico
to IMC, and the restrictions on conversion of Unit Equivalents
into Depositary Units (as such terms are defined in the FRP
Partnership Agreement) as in effect on the Closing Date or as
modified with the consent of the Required Banks;
(ix) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business
of a Borrower or any of its Subsidiaries;
(x) extensions, renewals and replacements of Liens
referred to in paragraphs (i), (ii), (iv), (vii), (viii), (ix)
and (xi) of this Section 5.2(d); provided that any such
extension, renewal or replacement Lien shall be limited to the
property or assets covered by the Lien extended, renewed or
replaced and that the obligations secured by any such
extension, renewal or replacement Lien shall be in an amount
not greater than the amount of the obligations secured by the
Lien extended, renewed or replaced; and
(xi) Liens on equity or debt investments in Third Parties
owned by FRP or FTX or a Restricted Subsidiary (which Lien in
any case is limited to such pledged equity or debt investment)
which secure Debt of Third Parties or other Third Party
obligations (or Guarantees thereof); provided that such pledged
investments were initially acquired in accordance with Section
5.2(l).
(e) Current Ratio. FRP shall not fail to maintain, as of the
last day of each fiscal quarter, consolidated current assets of FRP
(excluding Nonrestricted Subsidiaries) in an amount at least equal
to the amount of consolidated current liabilities of FRP (excluding
Nonrestricted Subsidiaries). For purposes hereof, consolidated
current assets and consolidated current liabilities shall be
determined in accordance with GAAP, except that (i) investments in
shares of corporations (other than shares which are, and which are
held as, marketable securities) and advances to Nonrestricted
Subsidiaries and other firms or companies in which FRP has a
material investment, direct or indirect, or which have a direct or
indirect material investment in FRP, shall not be included in
current assets; (ii) current assets shall be increased by the
available portion of the Commitments which, under the terms of this
Agreement, will, if not sooner terminated or drawn down by either
Borrower, remain outstanding for at least twelve months following
the time of determination; and (iii) the current portion of long-
term Debt shall not be included in current liabilities.
(f) EBITDA Ratio. FRP shall not permit its EBITDA Ratio to be
less than 1.25 to 1.00 at the end of any fiscal quarter.
(g) Debt. Neither Borrower nor any Restricted Subsidiary
shall incur, create, assume or permit to exist any Debt of any of
them except:
(i) the Loans;
(ii) $150,000,000 aggregate principal amount of FRP's 8-
3/4% Senior Subordinated Notes due 2004, but not any
extensions, renewals, replacements or refunding of such Debt,
and $150,000,000 aggregate principal amount of the FRP Senior
Notes, but not any replacement or refunding of such Debt;
(iii) Debt secured by the Liens permitted by
Section 5.2(d)(iii); provided that such Debt is discharged
within 180 days of the relevant acquisition or merger;
(iv) unsecured recourse liabilities (not in excess of the
uncollectible amounts of the accounts receivable sold) of FRP
arising from the sale of accounts receivable;
(v) unsecured loans and advances between the Restricted
Subsidiaries and to the Restricted Subsidiaries from FRP;
(vi) unsecured subordinated loans by FTX to FRP on the
terms of Schedule X hereto so long as no Loans are outstanding
to FTX;
(vii) purchase money Debt of FRP secured by Liens referred
to in Section 5.2(d)(ii) not in excess of the purchase price of
the related asset in each individual case and not in excess of
$25,000,000 principal amount for all such outstanding purchase
money Debt in the aggregate;
(viii) unsecured Debt of FRP with a maturity less than 90
days pursuant to uncommitted lines of credit with an
outstanding aggregate principal amount not at any time in
excess of $15,000,000, and unsecured Debt of FTX with a
maturity less than 90 days pursuant to uncommitted lines of
credit with an outstanding principal amount not at any time in
excess of $15,000,000;
(ix) subject to Section 2.7(b), additional Debt (including
Guarantees of any Debt of a Third Party and Capitalized Lease
Obligations) of FRP with an outstanding aggregate principal
amount not at any time in excess of $75,000,000 which shall,
except for Liens of Capitalized Lease Obligations permitted by
Section 5.2(d)(ii) or (vii), be unsecured;
(x) additional Debt of FRP fully subordinated to the Loans
on terms approved by the Administrative Agent, the net proceeds
of which shall, to the extent required by Section 2.7(b),
permanently reduce the Commitments and be applied to repay any
outstanding Loans;
(xi) the Guarantee of the FM Properties Indebtedness (not
in excess of $73,000,000 aggregate principal amount) by FTX
pursuant to the FTX Guaranty Agreement and FTX's own direct
non-principal and interest obligations (including joint and
several liability with FM Properties) under the FM Credit
Agreement and the documentation evidencing the other FM
Properties Indebtedness;
(xii) Debt consisting of a pledge of investments in
Nonrestricted Subsidiaries permitted by Section 5.2(d)(xi);
provided that such Debt is recourse solely to the investment so
pledged; and
(xiii) Debt of FTX resulting solely from its position as
general partner of FRP with respect to Debt of FRP permitted by
this Section 5.2(g).
(h) Debt to Capital Ratio. FRP shall not permit its Debt to
Capital Ratio to exceed 65% at the end of any fiscal quarter.
(i) Subordinated Debt Payments. The Borrowers and the
Restricted Subsidiaries shall not, directly or indirectly, make any
principal payment on, or repurchase of, any subordinated debt
referred to in clauses (ii) and (x) of Section 5.2(g) with proceeds
of the Loans.
(j) Ownership of Subsidiaries. FTX shall not at any time
directly or indirectly own shares or units of voting stock or
interests having on a fully diluted basis less than (x) 50.1%
ownership interest in FRP and (y) such voting power as provides
effective control of the policy and direction of FRP. FRP shall not
at any time directly have less than a 50.1% interest on a fully
diluted basis in Main Pass or directly or indirectly have less than
the applicable ownership percentage on a fully diluted basis of IMC-
Agrico set forth on Schedule IX hereto. FTX shall own its interests
in FRP and IMC-Agrico (including its interest in the FRP Partner, if
applicable), and FRP shall own its interests in Main Pass and IMC-
Agrico (including its interest in the FRP Partner, if applicable),
free and clear of all Liens, except as contemplated by
Section 3.1(o) and Section 5.2(d)(viii). The Borrowers shall
promptly notify the Administrative Agent in the event there occurs
any significant decrease in such ownership of FRP by FTX and of Main
Pass and IMC-Agrico by FRP below that indicated in the most recent
version of Schedule III and of any decrease in such voting control
or ownership percentage interest below 50.1% or the required
percentage set forth on Schedule IX hereto, as applicable, in each
case on a fully diluted basis. The ownership by FTX of equity
interests in FRP shall be direct and not through any intervening
entity. The ownership by FRP of its interests in Main Pass shall be
direct and not through any intervening entity. The ownership by FRP
of its interests in IMC-Agrico shall either be direct or through the
FRP Partner and/or IMC-Agrico MP, Inc., and if through the FRP
Partner and/or IMC-Agrico MP, Inc., the ownership by the FRP Partner
of its interests in IMC-Agrico shall be direct, except for the .001%
ownership interest of IMC-Agrico MP, Inc., and the ownership by IMC-
Agrico MP, Inc. of its interests in IMC-Agrico shall be direct and
not through any intervening entity.
(k) Fiscal Year. Each Borrower shall not change its fiscal
year to end on any date other than December 31.
(l) Investments in Nonrestricted Subsidiaries and Persons Not
Subsidiaries. The Borrowers and their Restricted Subsidiaries shall
not make or permit to exist (x) any Guarantee by it or a Restricted
Subsidiary or IMC-Agrico of the Debt of any Person which is not IMC-
Agrico (but in the case of IMC-Agrico, only to the extent permitted
by Section 5.2(r)) or a Restricted Subsidiary, including
Nonrestricted Subsidiaries, FCX and FI (each such Person being a
"Third Party") in excess of available amounts of Debt of FRP
permitted under Section 5.2(g)(ix), or (y) any loans or advances to,
or purchase any stock, other securities or evidences of indebtedness
of, or permit to exist any investment (whether by transfer of assets
or otherwise) or acquire any investment whatsoever in or any other
payment for the benefit of, any Third Parties the aggregate
outstanding amount of which under this clause (y) at any time
exceeds by more than $75,000,000 the largest aggregate amount
thereof outstanding at any time in FTX's preceding fiscal year;
provided that, notwithstanding the provisions of clauses (x) and (y)
above, (i) FTX (but not any Restricted Subsidiary, including FRP,
nor IMC-Agrico) may Guarantee (or be jointly and severally liable
with FM Properties for) the FM Properties Indebtedness as permitted
by Section 5.2(g)(xi) on the terms of the agreements set forth on
Schedule VII hereto and provide an environmental indemnity pursuant
to the FM Credit Agreement, (ii) the Borrowers and the Restricted
Subsidiaries may make investments as permitted under Section 5.2(r),
(iii) FTX may make term loans of up to $10,000,000 to FM Properties
and (iv) the Borrowers and the Restricted Subsidiaries may invest in
Permitted Investments all of which shall not be included in the
calculation of such $75,000,000 annual limit.
(m) Federal Reserve Regulations. The Borrowers will not, and
will cause their Subsidiaries not to, use the proceeds of any Loan
in any manner that would result in a violation of, or be
inconsistent with, the provisions of Regulations G, U or X. The
Borrowers will not, and will cause their Subsidiaries not to, take
any action at any time that would (A) result in a violation of the
substitution and withdrawal requirements of said Regulations, in the
event the same should become applicable to this Agreement or any
Loan or (B) cause the representation and warranty contained in
Section 3.1(h) at any time to be other than true and correct. In
the event that the Borrowers at any time believe that there exists a
reasonable possibility that they will become unable to make the
representation set forth in Section 3.1(h)(iv), and alternative
methods for complying the Margin Regulations in connection with this
Agreement are available, the banks and the Borrowers shall promptly
enter into negotiations with a view to amending this Agreement to
provide for such alternative methods of compliance.
(n) Certain Debt Agreements. FRP shall not, without the prior
written consent thereto of the Required Banks, amend, supplement or
change in any material manner, any of the terms or provisions of any
agreement, note or other instrument governing or evidencing its 8-
3/4% Senior Subordinated Notes Due 2004 which would shorten the
maturity, change the amortization schedule or increase the cost of
such Debt to FRP.
(o) FRP Transfers. FRP shall not make any contribution or
transfer of any substantial portion of its assets to any Restricted
Subsidiary other than a Wholly-Owned Restricted Subsidiary.
(p) Transactions with Affiliates. Other than the transactions
constituting the Restructuring, the Borrowers and their Restricted
Subsidiaries shall not sell or transfer any property or assets to,
or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates (other
than among Wholly-Owned Restricted Subsidiaries), except that as
long as no Default or Event of Default shall have occurred and be
continuing, the Borrowers or any Restricted Subsidiary may engage in
any of the foregoing transactions (i) in the case of a transaction
between a Borrower or a Restricted Subsidiary of a Borrower and a
non-Wholly-Owned Restricted Subsidiary, the relevant Borrower, or
such Restricted Subsidiary, as the case may be, has determined that
such transaction is in the best interests of such Borrower, or such
Restricted Subsidiary, as the case may be, and (ii) in the case of
any other transaction between a Borrower or a Restricted Subsidiary
and an Affiliate which is not a Restricted Subsidiary, at prices and
on terms and conditions not less favorable to the Borrower or such
Restricted Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties. Notwithstanding the foregoing,
(x) a Borrower or a Restricted Subsidiary may engage in the
foregoing transactions with a Wholly Owned Restricted Subsidiary and
(y) a Wholly Owned Restricted Subsidiary may engage in the foregoing
transactions with another Wholly Owned Restricted Subsidiary.
(q) Equity Payments. The Borrowers shall not make an Equity
Payment if there is then continuing any Default or Event of Default
(or a Default or Event of Default would result therefrom or exist
after giving effect thereto).
(r) Covenants Regarding IMC-Agrico. (i) The Borrowers and
their Restricted Subsidiaries shall not make or permit to exist any
loans or advances to, or purchase any stock, other securities or
evidences of indebtedness of, or permit to exist any investment
whatsoever in or make any Guarantee with respect to any such loans,
advances, purchases, investments or acquisitions of interest made by
any Person with respect to, or any other payment for the benefit of,
IMC-Agrico the aggregate outstanding amount of which exceeds by more
than $50,000,000 the largest aggregate amount thereof outstanding at
any time in FTX's preceding fiscal year.
(ii) FRP shall not permit IMC-Agrico to incur Debt in excess
of $237,000,000 at any time outstanding, of which Debt owing to any
Persons other than FRP, any Restricted Subsidiary of FRP, IMC and
any Subsidiary of IMC ("Third Party Debt") (x) shall not at any time
exceed $180,000,000 and (y) may be secured only by accounts
receivable and inventory of IMC-Agrico; provided that (A) the
$27,140,000 principal amount of Parish of St. Xxxxx, Louisiana, 7.7%
Solid Waste Disposal Revenue Bonds, Series 1992 (and any refunding
thereof) may be secured by the assets securing such Bonds as of the
Closing Date and (B) other Third Party Debt of IMC-Agrico not in
excess of $50,000,000 aggregate principal amount may be secured by
any other assets of IMC-Agrico; provided further that the Debt
incurred by IMC-Agrico to finance the transactions contemplated by
and on terms and conditions consistent with and as set forth in (1)
the Agreement for Real Estate Purchase Option dated as of July 7,
1994, between Mississippi Chemical Corporation ("MCC") and IMC-
Agrico, (2) the Agreement for Real Estate Repurchase Option dated as
of July 7, 1994, between MCC and IMC-Agrico and (3) the Agreement
for Real Estate Put Option dated as of July 7, 1994, between MCC
and IMC-Agrico, (the documents described in the foregoing clauses
(1) through (3), together with any other documents or instruments
executed or to be executed in connection therewith or pursuant
thereto being collectively referred to as the "MCC Documents") shall
not exceed $57,000,000 at any time outstanding and, in connection
with the incurrence of such Debt, IMC-Agrico may grant Liens on the
Property and the Adjacent Property (as defined in the MCC Documents)
and may agree not to further encumber the Property and the Adjacent
Property, all on terms and conditions consistent with and as set
forth in the MCC Documents.
(iii) FRP (A) shall not permit the FRP Partner to agree,
without the prior written consent of the Required Banks, (x) to
amend Section 6.04(a), (b) or (d) or Section 6.07 of the IMC-Agrico
Partnership Agreement or any defined term included in either such
Section or (y) to enter into any agreement which conflicts with
either Section which would in the case of either (x) or (y) dilute
the control of FRP Partner or narrow the scope of the decisions
subject to vote or approval by FRP Partner, (B) shall not consent to
any material change in the nature of business conducted by IMC-
Agrico, (C) shall notify the Administrative Agent of any proposed
amendment to any of the IMC-Agrico Partnership Agreement or any
other material agreement relating to IMC-Agrico and shall provide a
copy of any such proposed amendment to the Administrative Agent and
(D) shall not, and shall not permit its Subsidiaries to, in each
case without the prior written consent of the Required Banks, agree
to amend any such agreement if, in the opinion of the Administrative
Agent, such amendment could reasonably be expected to result in a
Material Adverse Effect; provided that, subject to Section
5.2(r)(vi) below, any dissolution, merger or liquidation of Agrico
LP into FRP, FTX or a newly formed Person which is a Restricted
Subsidiary with no Debt or Liens at the time of such dissolution,
merger or liquidation (provided that FTX's direct or indirect (other
than through FRP) ownership interests in IMC-Agrico shall not exceed
its ownership interests in Agrico LP as of the First Restatement
Closing Date) shall be specifically permitted hereby and shall be
deemed to not be expected to result in a Material Adverse Effect.
(iv) Neither FTX nor FRP shall permit its accounting for IMC-
Agrico to be other than as a proportional consolidating interest
unless the Borrowers and the Required Banks have agreed upon
mutually acceptable amendments to the financial covenants herein.
(v) FTX and FRP shall, to the full extent of their direct or
indirect rights and approvals under the IMC-Agrico Partnership
Agreement, their direct or indirect membership on the Policy
Committee for IMC-Agrico and otherwise pursuant to their ownership
interests in IMC-Agrico and IMC-Agrico MP, use their best efforts to
cause IMC-Agrico to comply (and shall not approve or consent to any
non-compliance by IMC-Agrico) with the provisions of Sections
5.1(b), 5.1(c), 5.1(d), 5.1(g), 5.1(i), 5.1(j), 5.2(a), 5.2(d) (with
the liens securing third-party Debt of IMC-Agrico pursuant to
Section 5.2(r)(ii)(y) permitted and excluding clauses (ii), (iv),
(v), (vi) and (viii) from Section 5.2(d) as applied to IMC-Agrico
pursuant to this Section 5.2(r)(v)) and 5.2(p) as if IMC-Agrico were
a Restricted Subsidiary; provided that, subject to Section 7.1(g),
(h), (i), (j) and (k), neither FRP nor FTX shall be in Default under
this Section 5.2(r)(v) if IMC causes IMC-Agrico to fail to comply
with such Sections and FRP or FTX has not approved or consented to
such non-compliance.
(vi) FRP shall not alter or modify the structure of its
ownership interest in IMC-Agrico unless and until it shall deliver
to the Agents an opinion of counsel satisfactory to the Agents to
the effect that, after giving effect to such alteration or
modification, FRP would be able to grant to the Banks a Lien on such
ownership interest without any requirement to equally and ratably
secure the FRP Senior Notes (or any other Debt) with such Lien;
provided that nothing herein shall be deemed to require the creation
of any such Lien in favor of the Banks on such ownership interests.
(s) Scope of FRP's Business. FRP shall not materially alter
the nature of the business and activities in which it is engaged as
of the Closing Date.
ARTICLE VI
Conditions to Credit Events
SECTION 6.1. Conditions Precedent to Each Credit Event. Each
Credit Event shall be subject to the following conditions precedent:
(i) the representations and warranties on the part of FTX and
FRP contained in the Loan Documents shall be true and correct in all
material respects at and as of the date of such Credit Event as
though made on and as of such date;
(ii) the Administrative Agent shall have received a notice of
such borrowing as required by Section 2.3;
(iii) no Event of Default shall have occurred and be continuing
on the date of such Credit Event or would result from such Credit
Event;
(iv) the Loans to be made by the Banks on such date, and the
use of the proceeds thereof and the security arrangements
contemplated hereby shall not result in a violation of Regulation U,
Regulation G or Regulation X, as in effect on the date of such
borrowing. If required by Regulation U as a result of such use of
proceeds, FTX shall have delivered to the Bank a statement in
conformity with the requirements of Federal Reserve Form U-1
referred to in Regulation U.
(v) there shall have been no amendments to the Certificate of
Incorporation or the Certificate of Limited Partnership, as
applicable, or to the By-laws or Partnership Agreement, as
applicable, of FTX or FRP since the date of the Certificates
furnished by the Borrowers on the Funding Date, other than
amendments, if any, copies of which have been furnished to the
Administrative Agent; and
(vi) there shall be no proceeding for the dissolution or
liquidation of FTX or FRP or any proceeding to revoke the
Certificate of Incorporation of FTX or to rescind the partnership
agreement of FRP or its respective corporate or partnership
existence, which is pending or, to the knowledge of the Borrowers,
threatened against or affecting FTX or FRP.
SECTION 6.2. Representations and Warranties with Respect to Credit
Events. Each Credit Event shall be deemed a representation and warranty
by the Borrowers that the conditions precedent to such Credit Event,
unless otherwise waived in accordance herewith, shall have been
satisfied.
ARTICLE VII
Events of Default
SECTION 7.1. Events of Default. If any of the following acts or
occurrences (an "Event of Default") shall occur and be continuing:
(a) default for three or more days in the payment when due of
any principal of any Loan; or
(b) default for five or more days in the payment when due of
any interest on any Loan, or of any other amount payable under the
Loan Documents; or
(c) any representation or warranty made or deemed made in or in
connection with any Loan Document or in any certificate, letter or
other writing or instrument furnished or delivered to the Banks or
the Agents pursuant to any Loan Document shall prove to have been
incorrect in any material respect when made or effective or
reaffirmed and repeated, as the case may be; or
(d) default by FTX or FRP in the due observance or performance
of any covenant, condition or agreement in Section 5.1(a)(4) with
respect to notices of Defaults or Events of Default, 5.1(c) or
5.1(k) of this Agreement, other than the covenant to preserve and
maintain all of such Person's rights, privileges and franchises
desirable in the normal conduct of its business; or
(e) default by the Borrowers or any Restricted Subsidiary in
the due observance or performance of any covenant, condition or
agreement in Section 5.2 of this Agreement other than
Section 5.2(k); or
(f) default by the Borrowers or any Restricted Subsidiary in
the due observance or performance of any other covenant, condition
or agreement in the Loan Documents which shall remain unremedied for
30 days after written notice thereof shall have been given to such
Borrower by the Administrative Agent or any Bank; or
(g) either Borrower or any Restricted Subsidiary or IMC-Agrico
shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, liquidation or similar law, (ii) consent to
the institution of, or fail to contravene in a timely and
appropriate manner, any proceeding or the filing of any petition
described in clause (h) below, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator or
similar official for such Borrower or such Restricted Subsidiary or
IMC-Agrico or for a substantial part of its property or assets,
(iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit
in writing its inability or fail generally to pay its debt as they
become due or (vii) take any action for the purpose of effecting any
of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of either Borrower or any
Restricted Subsidiary or IMC-Agrico, or of a substantial part of the
property or assets of either Borrower or any Restricted Subsidiary
or IMC-Agrico, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or
similar official for either Borrower or any Restricted Subsidiary or
IMC-Agrico or for a substantial part of the property of either
Borrower or any Restricted Subsidiary or IMC-Agrico or (iii) the
winding-up or liquidation of a Borrower or any Restricted Subsidiary
or IMC-Agrico; and such proceeding or petition shall continue
undismissed for 60 days, or an order or decree approving or ordering
any of the foregoing shall continue unstayed and in effect for
30 days; or
(i) default shall be made with respect to (x) the Pennzoil
Obligations or (y) Hedge Agreements or (z) any Debt of either
Borrower or any Restricted Subsidiary or IMC-Agrico if the effect of
any such default shall be to accelerate, or to permit the holder or
obligee of any such obligations or Debt (or any trustee on behalf of
such holder or obligee) to accelerate (with or without notice or
lapse of time or both), the maturity of such Debt, the payment of
any net termination value in respect of Hedge Agreements and/or the
payment of the Pennzoil Obligations, as applicable, in an aggregate
amount in excess of $10,000,000; or any payment, regardless of
amount, of (A) net termination value on any such obligation in
respect of Hedge Agreements, (B) any deferred purchase amount on the
Pennzoil Obligations and/or (C) any Debt of either Borrower or a
Restricted Subsidiary or of IMC-Agrico, as applicable, in an
aggregate principal amount (or in the case of a Hedge Agreement, net
termination value) in excess of $10,000,000, shall not be paid when
due, whether at maturity, by acceleration or otherwise (after giving
effect to any period of grace specified in the instrument evidencing
or governing such Debt or other obligation); or
(j) an ERISA Event shall have occurred with respect to any Plan
or Multi-Employer Plan that, when taken together with all other
ERISA Events, reasonably could be expected to result in liability of
either Borrower and/or any Restricted Subsidiary and the Borrowers'
ERISA Affiliates in an aggregate amount exceeding $25,000,000 or
requires payments exceeding $10,000,000 in any year; or
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered by a
court or other tribunal against either Borrower or any Restricted
Subsidiary or IMC-Agrico and shall remain undischarged for a period
of 45 consecutive days during which execution of such judgment shall
not have been effectively stayed; or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of
either Borrower or any Restricted Subsidiary to enforce any such
judgment; or
(l) any security interest purported to be created by either
Security Agreement shall cease to be, or shall be asserted by the
Borrowers or any of their Affiliates not to be, a valid, perfected,
first priority security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss
of perfection or priority results from the failure of the FTX
Collateral Agent or the FRP Collateral Agent to maintain possession
of certificates representing securities pledged under the Security
Agreements to the extent that such pledged securities are
certificated securities; or
(m) there shall have occurred a Change in Control;
then, and in any such event (other than an event with respect to
either Borrower described in paragraph (g) or (h) above), and at any
time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Banks
shall, by written, telecopied, telex or telegraphic notice to the
Borrowers, take one or more of the following actions at the same or
different times: (i) declare the Total Commitment to be terminated,
whereupon the Total Commitment shall forthwith terminate;
(ii) declare the Loans and all other sums then owing by the
Borrowers under the Loan Documents to be forthwith due and payable,
whereupon all the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid
accrued fees and all other liabilities of the Borrowers accrued
hereunder and under any other Loan Document, shall become and be
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived
by each Borrower, anything contained herein or in any Promissory
Note to the contrary notwithstanding or (iii) exercise any or all
the remedies then available under the Security Agreements; provided,
however, that upon the occurrence of any event described in
paragraph (g) or (h) of this Section 7.1 as to which a Borrower is
the entity involved, the Commitments will forthwith terminate and
all sums then owing by the Borrowers to the Banks upon the
Promissory Notes or otherwise hereunder shall, without any
declaration or other action by any Bank or Agent hereunder, be
immediately due and payable and the Total Commitment hereunder shall
be immediately terminated without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by each
Borrower, anything contained herein or in any Promissory Note or
other Loan Document to the contrary notwithstanding. Promptly
following the making of any such declaration, the Administrative
Agent shall give notice thereof to the Borrowers but failure to do
so shall not impair the effect of such declaration.
ARTICLE VIII
The Agents
SECTION 8.1. The Agents. (a) For convenience of administration
and to expedite the transactions contemplated by this Agreement, Chase is
hereby appointed as Administrative Agent, FTX Collateral Agent and FRP
Collateral Agent for the Banks under this Agreement and the Security
Agreements, and Chase is hereby appointed as the Documentary Agent for
the Banks under this Agreement. None of the Agents shall have any duties
or responsibilities with respect hereto except those expressly set forth
herein or in the other Loan Documents. Each Bank, and each subsequent
holder of any Promissory Note by its acceptance thereof, hereby
irrevocably appoints and expressly authorizes the Agents, without hereby
limiting any implied authority, to take such action as the Agents may
deem appropriate on its behalf and to exercise such powers under this
Agreement as are specifically delegated to such Person by the terms
hereof, together with such powers as are reasonably incidental thereto.
The Administrative Agent is hereby expressly authorized by the Banks,
without hereby limiting any implied authority, (a) to receive on behalf
of the Banks all payments of principal of and interest on the Loans and
all other amounts due to the Banks hereunder, and promptly to distribute
to each Bank its proper share of each payment so received; (b) to give
notice on behalf of the Banks to the Borrowers of any Event of Default
specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder or as directed
by the Required Banks; and (c) to distribute to each Bank copies of all
notices, financial statements and other materials delivered by the
Borrowers pursuant to this Agreement as received by the Administrative
Agent. Without limiting the generality of the foregoing, the Collateral
Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the collateral under the Security
Agreements and the rights of the secured parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement
and the Security Agreements. Each of the Agent and the Collateral Agents
may exercise any of its duties hereunder by or through their respective
agents, officers or employees. In addition, each Bank hereby irrevocably
authorizes and directs the Collateral Agents to enter, on behalf of each
of them, into the FTX Intercreditor Agreement (in the case of the FTX
Collateral Agent) and the Security Agreements, as contemplated pursuant
to this Agreement.
(b) None of the Agents or any of their respective directors,
officers, agents or employees shall be liable as such for any action
taken or omitted to be taken by any of them except for its or his own
gross negligence or wilful misconduct, or be responsible for any
statement, warranty or representation herein or the contents of any
document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the
Borrowers or any other party of any of the terms, conditions, covenants
or agreements contained in any Loan Document. The Agents shall not be
responsible to the Banks or the holders of the Notes for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement, the Notes or any other Loan Documents or other instruments or
agreements. The Administrative Agent may deem and treat the payee of any
Promissory Note as the owner thereof for all purposes hereof until it
shall have received from the payee of such Promissory Note notice, given
as provided herein, of the transfer thereof in compliance with
Section 9.3. The Agents shall in all cases be fully protected in acting,
or refraining from acting, in accordance with written instructions signed
by the Required Banks and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Banks and each subsequent holder of any
Promissory Note. Each Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by
it in good faith to be genuine and correct and to have been signed or
sent by the proper Person or Persons. None of the Agents nor any of
their respective directors, officers, employees or agents shall have any
responsibility to the Borrowers or any other party on account of the
failure of or delay in performance or breach by any Bank of any of its
obligations hereunder or to any Bank on account of the failure of or
delay in performance or breach by any other Bank or the Borrowers or any
other party of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith. Each of the
Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel. The Banks hereby acknowledge
that none of the Agents shall be under any duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this
Agreement unless it shall be requested in writing to do so by the
Required Banks.
(c) To the extent that any Agent shall not be reimbursed by the
Borrowers for any costs, liabilities or expenses incurred in such
capacity, each Bank agrees (i) to reimburse the Agents, on demand (in the
amount of its Applicable Percentage hereunder) of any expenses incurred
for the benefit of the Banks by the Agents, including counsel fees and
compensation of agents and employees paid for services rendered on behalf
of the Banks and (ii) to indemnify and hold harmless each Agent and any
of its directors, officers, employees or agents, on demand, in the amount
of such Applicable Percentage, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted
by it or any of them under this Agreement or any other Loan Document;
provided, however, that no Bank shall be liable to an Agent for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of such Agent or of its
directors, officers, employees or agents.
(d) With respect to the Loans made by it hereunder and the
Promissory Notes issued to it, each Agent in its individual capacity and
not as Agent shall have the same rights and powers as any other Bank and
may exercise the same as though it were not an Agent, and the Agents and
their Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrowers or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
(e) Subject to the appointment and acceptance of a successor Agent
as provided below, any Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers. Upon any such
resignation, the Required Banks shall have the right to appoint, and the
Borrowers shall have the right to approve (such approval not to be
unreasonably withheld or delayed) a successor Administrative Agent, FTX
Collateral Agent, FRP Collateral Agent or Documentary Agent, as the case
may be. If no successor Agent, FTX Collateral Agent, FRP Collateral
Agent or Documentary Agent, as the case may be, shall have been so
appointed and approved and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation, then
the retiring Person may, on behalf of the Banks, appoint a successor
Administrative Agent, FTX Collateral Agent, FRP Collateral Agent or
Documentary Agent, as the case may be, which shall be a Bank with an
office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such Bank. Upon the acceptance
of any appointment as Administrative Agent, FTX Collateral Agent, FRP
Collateral Agent or Documentary Agent hereunder by a successor
Administrative Agent, FTX Collateral Agent, FRP Collateral Agent or
Documentary Agent, as the case may be, such successor Administrative
Agent, FTX Collateral Agent, FRP Collateral Agent or Documentary Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall
from and after such date be discharged from its duties and obligations
hereunder. After any such retiring Agent's resignation hereunder as
Administrative Agent, FTX Collateral Agent, FRP Collateral Agent or
Documentary Agent, as applicable, the provisions of this Article VIII and
Section 9.4 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent, FTX
Collateral Agent, FRP Collateral Agent or Documentary Agent, as
applicable.
(f) The Administrative Agent and the Documentary Agent shall be
responsible for supervising the preparation, execution and delivery of
this Agreement and the other agreements and instruments contemplated
hereby, any amendment or modification thereto and the closing of the
transactions contemplated hereby and thereby. In addition, the
Administrative Agent shall assist the FTX Collateral Agent and the FRP
Collateral Agent in the performance of its duties as may be reasonably
requested by the FTX Collateral Agent or the FRP Collateral Agent from
time to time.
(g) The obligations of the Administrative Agent, the FTX Collateral
Agent, the FRP Collateral Agent and the Documentary Agent shall be
separate and several and neither of them shall be responsible or liable
for the acts or omissions of the other, except, to the extent that any
such Agent serves in more than one agent capacity, such Agent shall be
responsible for the acts and omissions relating to each such agency
function.
(h) Without the prior written consent of the Required Banks, the
Administrative Agent and the FTX Collateral Agent will not consent to any
modification, supplement or waiver of the FTX Intercreditor Agreement or,
except to the extent required by the FTX Intercreditor Agreement, the FTX
Security Agreement and the FRP Collateral Agent will not consent to any
modification, supplement or waiver of the FRP Security Agreement.
(i) Each Bank acknowledges that it has, independently and without
reliance upon the Agents or any other Bank and based on such documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the
Agents or any other Bank and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this
Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or
overnight or same day courier service or mailed or sent by telex,
telecopy, graphic scanning or other telegraphic communications equipment
of the sending party to the appropriate party's address set forth on the
signature pages hereof; provided that notices by or to FRP may be given
by or to FTX as its general partner, and notices stated to be given by or
to the "Borrowers" may be given by or to FTX on behalf of both Borrowers.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have
been given on the date of receipt if hand delivered or delivered by any
telecopy, telegraphic or telex communications equipment or three days
after being sent by registered or certified mail, postage prepaid, return
receipt requested, in each case addressed to such party as provided in
this Section 9.1 or in accordance with the latest unrevoked direction
from such party.
SECTION 9.2. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection
with this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and the Agents and shall survive the
making by the Banks of the Loans and the execution and delivery to the
Banks of the Promissory Notes evidencing such Loans regardless of any
investigation made by the Banks or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest
on any Note, any Commitment Fee or any other fee or amount payable under
the Loan Documents is outstanding and unpaid and so long as the
Commitments have not been terminated.
SECTION 9.3. Successors and Assigns; Participation; Purchasing
Banks. (a) This Agreement shall be binding upon and inure to the
benefit of FTX, FRP, the Banks, the Agents, all future holders of the
Promissory Notes, and their respective successors and assigns, except
that neither FTX nor FRP may assign, delegate or transfer any of its
rights or obligations under this Agreement without the prior written
consent of each Bank. Any Bank may at any time pledge or assign all or
any portion of its rights under this Agreement and the Promissory Notes
issued to it to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Bank; provided that no such pledge or
assignment shall release a Bank from any of its obligations hereunder or
substitute any such Federal Reserve Bank for such Bank as a party hereto.
(b) Any Bank may, in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants")
participating interests in all or a portion of any Loan owing to such
Bank, any Promissory Note held by such Bank, any Commitment of such Bank
or any other interest of such Bank hereunder. In the event of any such
sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any such
Promissory Note for all purposes under this Agreement and the Borrowers
and the Agents shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this
Agreement. The Borrowers agree that if amounts outstanding under this
Agreement and the Promissory Notes are due and unpaid, or shall have been
declared due or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right
of setoff in respect of its participating interest in amounts owing under
this Agreement and any Promissory Note to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement or any Promissory Note; provided that such right of
setoff shall be subject to the obligation of such Participant to share
with the Banks, and the Banks agree to share with such Participant, as
provided in Section 2.15. The Borrowers also agree that each Participant
shall be entitled to the benefits of Sections 2.11, 2.12, 2.13, 2.15,
2.17 and 9.5 with respect to its participation in the Commitments and the
Loans outstanding from time to time as if it were a Bank; provided that
no Participant shall be entitled to receive any greater payment pursuant
to such Sections than the transferor Bank would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Bank to such Participant unless such participation shall have
been made at a time when the circumstances giving rise to such greater
payment did not exist; and provided that the voting rights of any
Participant would be limited to amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any
scheduled principal payment date or date fixed for the payment of
interest on the Loans, changing or extending the Commitments or release
of all or substantially all the collateral for the Loans.
(c) Any Bank may, in accordance with applicable law and subject to
Section 9.3(h), at any time assign by novation all or any part of its
rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it and the
Promissory Notes held by it) (I) to any Bank or any Affiliate thereof,
without the Borrowers' consent, or (II) to one or more additional banks
or financial institutions (any such entity referred to in clause (I) or
(II) being a "Purchasing Bank") with the consent of the Administrative
Agent and the Borrowers, such consent not to be unreasonably withheld (it
being understood that the Borrowers may withhold their consent to a
Purchasing Bank (i) which is not a commercial bank or savings and loan
institution or (ii) which would, as of the effective date of such
assignment, be entitled to claim compensation under Section 2.11 which
the transferor Bank would not be entitled to claim as of such date),
pursuant to a Commitment Transfer Supplement in the form of Exhibit D,
executed by such Purchasing Bank and such transferor Bank (and, in the
case of a Purchasing Bank that is not then a Bank or an Affiliate
thereof, by the Borrowers and the Administrative Agent), and delivered
for its recording in the Register to the Administrative Agent, together
with the Promissory Notes subject to such assignment, the registration
and processing fee required by Section 9.3(e) and an Administrative
Questionnaire for the Purchasing Bank if it is not already a Bank.
Assignments shall be by novation only and a proportionate interest in the
Loans and Commitments to both FRP and FTX (and the related Promissory
Notes) must be assigned. Upon such execution, delivery and recording
(and, if required, consent of the Borrowers and the Administrative
Agent), from and after the Transfer Effective Date determined pursuant to
such Commitment Transfer Supplement (which shall be at least five days
after the execution and delivery thereof), (x) the Purchasing Bank
thereunder shall (if not already a party hereto) be a party hereto and
have the rights and obligations of a Bank hereunder with a Commitment as
set forth in such Commitment Transfer Supplement, and (y) the transferor
Bank thereunder shall, to the extent assigned by such Commitment Transfer
Supplement, be released from its obligations under this Agreement (and,
in the case of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Bank's rights and obligations under
this Agreement, such transferor Bank shall cease to be a party hereto).
Such Commitment Transfer Supplement shall be deemed to amend this
Agreement (including Schedule II hereto) to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Bank (if not
already a party hereto) and the resulting adjustment of Applicable
Percentages arising from the purchase by such Purchasing Bank of all or a
portion of the rights and obligations of such transferor Bank under this
Agreement and the Promissory Notes. On or prior to the Transfer
Effective Date determined pursuant to such Commitment Transfer
Supplement, each Borrower, at its own expense, shall execute and deliver
to the Administrative Agent in exchange for the surrendered Promissory
Note a new Promissory Note to the order of such Purchasing Bank in an
amount equal to the Commitment assumed by it pursuant to such Commitment
Transfer Supplement (in the case of FTX, such Purchasing Bank's
Applicable Percentage of the lesser of (A) $150,000,000 and (B) the
portion of the then effective Total Commitment which may be used for
borrowings by FTX) and, if the transferor Bank has retained a Commitment
hereunder, a new Promissory Note to the order of the transferor Bank in
an amount equal to the Commitment retained by it hereunder (in the case
of FTX, such transferor Bank's Applicable Percentage of the lesser of
(X) $150,000,000 and (Y) the portion of the then effective Total
Commitment which may be used for borrowings by FTX). Such new Promissory
Notes shall be dated the Closing Date and shall otherwise be in the form
of the Promissory Notes replaced thereby. The Promissory Notes
surrendered by the transferor Bank shall be returned by the
Administrative Agent to the Borrowers marked "canceled".
(d) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in The City
of New York a copy of each Commitment Transfer Supplement delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the
Loans owing to, each Bank from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the parties
hereto may treat each Person whose name is recorded in the Register as
the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by the parties
hereto at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed
by a transferor Bank and a Purchasing Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Borrowers and the Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of $3,500, the
Administrative Agent shall (i) promptly accept such Commitment Transfer
Supplement and (ii) on the Transfer Effective Date determined pursuant
thereto record the information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and the Borrowers.
(f) Subject to Section 9.15, the Borrowers authorize each Bank to
disclose to any Participant or Purchasing Bank (each, a "Transferee") and
any prospective Transferee any and all financial and other information in
such Bank's possession concerning the Borrowers and its Affiliates which
has been delivered to such Bank by or on behalf of the Borrowers pursuant
to this Agreement or which has been delivered to such Bank by or on
behalf of the Borrowers in connection with such Bank's credit evaluation
of the Borrowers and their Affiliates prior to becoming a party to this
Agreement.
(g) If, pursuant to this Section 9.3, any interest in this
Agreement or any Promissory Note is transferred to any Transferee which
is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Bank (x) shall immediately
notify the Administrative Agent of such transfer, describing the terms
thereof and indicating the identity and country of residence of each
Transferee. Such transferor Bank or Transferee shall indemnify and hold
harmless the Borrowers and the Administrative Agent from and against any
tax, interest, penalty or other expense that the Borrowers and the
Administrative Agent may incur as a consequence of any failure to
withhold United States taxes applicable because of any transfer or
participation arrangement that is not fully disclosed to them as required
hereunder.
(h) By executing and delivering a Commitment Transfer Supplement,
the transferor Bank thereunder and the Purchasing Bank thereunder shall
be deemed to confirm to and agree with each other and the other parties
hereto as follows: (i) such transferor Bank warrants that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Commitment, and the
outstanding balance of its Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in
such Commitment Transfer Supplement, (ii) except as set forth in
(i) above, such transferor Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial
condition of the Borrowers or any Subsidiary or the performance or
observance by the Borrowers or any Subsidiary of any of its obligations
under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such Purchasing Bank represents
and warrants that it is legally authorized to enter into such Commitment
Transfer Supplement; (iv) such Purchasing Bank confirms that it has
received a copy of this Agreement, together with copies of the most
recent financial statements, if any, delivered pursuant to Section 5.1
and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Commitment
Transfer Supplement; (v) such Purchasing Bank will independently and
without reliance upon the Agents, such transferor Bank or any other Bank
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (vi) such Purchasing Bank appoints
and authorizes the Agents to take such action as agent on its behalf and
to exercise such respective powers under this Agreement and the other
Loan Documents as are delegated to the Agents by the terms hereof,
together with such powers as are reasonably incidental thereto; and
(vii) such Purchasing Bank agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
SECTION 9.4. Expenses of the Banks; Indemnity. (a) The Borrowers
agree, jointly and severally, to pay all out-of-pocket expenses
reasonably incurred by the Agents in connection with the preparation and
administration of this Agreement, the Promissory Notes and the other Loan
Documents or with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) or reasonably incurred by the Agents
or any Bank in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents or
with the Loans made or the Promissory Notes issued hereunder (whether
through negotiations, legal proceedings or otherwise), including, but not
limited to, the reasonable fees and disbursements of Cravath, Swaine &
Xxxxx, special counsel for the Agents, and, in connection with such
enforcement or protection, the reasonable fees and disbursements of other
counsel for any Bank. The Borrowers further jointly and severally agree
that they shall indemnify the Banks and the Agents from and hold them
harmless against any documentary taxes, assessments or charges made by
any Governmental Authority by reason of the execution and delivery of or
in connection with the performance of this Agreement, any of the
Promissory Notes or any of the other Loan Documents. Further, the
Borrowers jointly and severally agree to pay, and to protect, indemnify
and save harmless each Bank, each Agent and each of their respective
officers, directors, shareholders, employees, agents and servants from
and against, any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs or
expenses (including, without limitation, attorneys' fees and expenses) in
connection with any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent shall be designated a party thereto of
any nature arising from or relating to (i) the execution or delivery of
this Agreement or any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the transactions
contemplated hereby and thereby (including the Restructuring) or (ii) the
use of the proceeds of the Loans; and the Borrowers also jointly and
severally agree to pay, and to protect, indemnify and save harmless each
Bank, each Agent and each of their respective officers, directors,
shareholders, employees, agents and servants from and against, any and
all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses in connection with any
investigative, administrative or judicial proceeding, whether or not such
Bank or Agent shall be designated a party thereto) of any nature arising
from or relating to any actual or alleged presence or Release of
Hazardous Materials on any property owned or operated by IMC-Agrico, the
Borrowers or any of the Subsidiaries, or any Environmental Claim related
in any way to IMC-Agrico, the Borrowers or the Subsidiaries or arising
from or in connection with the environmental due diligence summary
memorandum referred to in paragraph (m) of Article IV; provided that any
such indemnity referred to in this sentence shall not, as to any
indemnified Person, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and non appealable judgment to have
resulted from the gross negligence or wilful misconduct of such
indemnified Person. If any action, suit or proceeding arising from any
of the foregoing is brought against any Bank, Agent or other Person
indemnified or intended to be indemnified pursuant to this Section 9.4,
the Borrowers, to the extent and in the manner directed by such
indemnified party, will resist and defend such action, suit or proceeding
or cause the same to be resisted and defended by counsel designated by
the Borrowers (which counsel shall be satisfactory to such Bank, Agent or
other Person indemnified or intended to be indemnified). If the
Borrowers shall fail to do any act or thing which it has covenanted to do
hereunder or any representation or warranty on the part of the Borrowers
contained in this Agreement shall be breached, any Bank or Agent may (but
shall not be obligated to) do the same or cause it to be done or remedy
any such breach, and may expend its funds for such purpose. Any and all
amounts so expended by any Bank or Agent shall be repayable to it by the
Borrowers immediately upon such Bank's or such Agent's demand therefor.
(b) The provisions of this Section 9.4 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby or
thereby, the repayment of any of the Loans or any Promissory Notes, the
invalidity or unenforceability of any term or provision of this
Agreement, any other Loan Document or any Promissory Note, or any
investigation made by or on behalf of any Bank or any Agent. All amounts
due under this Section 9.4 shall be payable on written demand therefor.
SECTION 9.5. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have been accelerated or
any Bank shall have requested the Administrative Agent to declare the
Loans immediately due and payable pursuant to Article VII, then each Bank
is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank to or for the
credit or the account of either Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this
Agreement and the Promissory Notes held by such Bank, irrespective of
whether or not such Bank shall have made any demand under this Agreement
or such Promissory Notes and although such obligations may be unmatured.
Each Bank agrees promptly to notify the Borrowers after any such setoff
and application made by such Bank, but the failure to give such notice
shall not affect the validity of such setoff and application. The rights
of each Bank under this Section 9.5 are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which
such Bank may have.
SECTION 9.6. APPLICABLE LAW. THIS AGREEMENT AND THE PROMISSORY
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 9.7. Waivers; Amendments. (a) No failure or delay of any
Bank or Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Banks and the Agents hereunder and under the other documents and
agreements entered into in connection herewith are cumulative and not
exclusive of any rights or remedies which they would otherwise have. No
waiver of any provision of this Agreement, any other Loan Document or any
Promissory Note or any other such document or agreement or consent to any
departure by any Borrower therefrom shall in any event be effective
unless the same shall be authorized as provided in paragraph (b) below,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower in any case shall entitle such Borrower to any other or further
notice or demand in similar or other circumstances. Each holder of any
of the Promissory Notes shall be bound by any amendment, modification,
waiver or consent authorized as provided herein, whether or not such
Promissory Note shall have been marked to indicate such amendment,
modification, waiver or consent.
(b) This Agreement and the Security Agreements (including any
provision hereof or thereof) may not be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by
the Borrowers and the Required Banks; provided, however, that no such
agreement shall (i) change the principal amount of, or extend or advance
the maturity of or any date for the payment (other than pursuant to
Section 2.7(b), which may be amended by the Required Banks) of any
principal of or interest on, any Promissory Note (including, without
limitation, any such payment pursuant to Section 2.7(c) or paragraph (a)
or (b) of Section 2.9), or waive or excuse any such payment or any part
thereof, or change the rate of interest on any Promissory Note, without
the written consent of each holder affected thereby, (ii) change or
extend the Commitment of any Bank without the written consent of such
Bank, or change any fees to be paid to any Bank or Agent hereunder
without the written consent of such Bank or the Agent, as applicable,
(iii) amend or modify the provisions of this Section 9.7, Sections 2.8
through 2.15 or Section 9.4 or the definition of "Required Banks",
without the written consent of each Bank or (iv) release the collateral
granted as security under the Security Agreements (except as expressly
required hereby or thereby), without the written consent of each Bank;
and provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of an Agent hereunder without the
written consent of such Agent. Each Bank and holder of any Promissory
Note shall be bound by any modification or amendment authorized by this
Section 9.7 regardless of whether its Promissory Notes shall be marked to
make reference thereto, and any consent by any Bank or holder of a
Promissory Note pursuant to this Section shall bind any Person
subsequently acquiring a Promissory Note from it, whether or not such
Promissory Note shall be so marked.
SECTION 9.8. Severability. In the event any one or more of the
provisions contained in this Agreement or in the Promissory Notes should
be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein
or therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.9. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one contract, and shall
become effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered or mailed to
the Administrative Agent and the Borrowers.
SECTION 9.10. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.11. Entire Agreement. This Agreement, the other Loan
Documents, the fee letters between the Agents and the Borrowers and the
exhibits and schedules hereto contain the entire agreement among the
parties hereto with respect to the Loans and the related transactions.
Any previous agreement among the parties with respect to the subject
matter hereof is superseded by this Agreement, such fee letters and the
other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan
Documents.
SECTION 9.12. WAIVER OF JURY TRIAL, ETC. (A) EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.12.
(b) Except as prohibited by law, each party hereto hereby waives
any right it may have to claim or recover in any litigation referred to
in paragraph (a) of this Section 9.12 any special, indirect, exemplary,
punitive or consequential damages or any damages other than, or in
addition to, actual damages.
(c) Each party hereto (i) certifies that no representative, agent
or attorney of any Bank has represented, expressly or otherwise, that
such Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that it has been induced to enter
into this Agreement or any other document, as applicable, by, among other
things, the mutual waivers and certifications herein.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein or in the Promissory Notes to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and
other amounts which are treated as interest on such Loan under applicable
law (collectively the "Charges"), as provided for herein or in any other
document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by such Bank in accordance with
applicable law, the rate of interest in respect of such Loan hereunder or
payable under the Promissory Note held by such Bank, together with all
Charges payable to such Bank, shall be limited to the Maximum Rate and,
to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan but were not payable as a result of the
operation of this Section 9.13 shall be cumulated and the interest and
Charges payable to such Bank in respect of other Loans or periods shall
be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Bank.
SECTION 9.14. JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(A) EACH BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN
NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY BANK OR AGENT MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY AGAINST ANY BORROWER OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(B) EACH BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY IN ANY NEW YORK STATE OR FEDERAL COURT.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.1. NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 9.15. Confidentiality. Each Bank agrees (which agreement
shall survive the termination of this Agreement) that financial
information, information from the Borrowers' and their Subsidiaries'
books and records, information concerning the Borrowers' and their
Subsidiaries' trade secrets and patents and any other information
received from the Borrowers and their Subsidiaries hereunder shall be
treated as confidential by such Bank, and each Bank agrees to use its
best efforts to ensure that such information is not published, disclosed
or otherwise divulged to anyone other than employees or officers of such
Bank and its counsel and agents; provided that it is understood that the
foregoing shall not apply to:
(i) disclosure made with the prior written authorization of a
Borrower;
(ii) disclosure of information (other than that received from
the Borrowers and their Subsidiaries prior to or under this
Agreement) already known by, or in the possession of, such Bank
without restrictions on the disclosure thereof at the time such
information is supplied to such Bank by a Borrower or its
Subsidiaries hereunder;
(iii) disclosure of information which is required by applicable
law or to a governmental agency having supervisory or regulatory
authority over any party hereto;
(iv) disclosure of information in connection with any suit,
action or proceeding in connection with the enforcement of rights
hereunder or in connection with the transaction contemplated hereby
or thereby;
(v) disclosure to any bank (or other financial institution)
which may acquire a participation or other interest in the Loans or
rights of any Bank hereunder; provided that such bank (or other
financial institution) agrees to maintain any such information to be
received in accordance with the provisions of this Section 9.15;
(vi) disclosure by any party hereto to any other party hereto
or their counsel or agents;
(vii) disclosure by any party hereto to any entity, or to any
subsidiary of such an entity, which owns, directly or indirectly,
more than 50% of the voting stock of such party, or to any
subsidiary of such an entity; or
(viii) disclosure of information that prior to such disclosure
has become public knowledge through no violation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
FREEPORT-McMoRan INC.,
by
/s/ X. Xxxxxx Xxxxxx
------------------------------
Name: X. Xxxxxx Xxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP,
by FREEPORT McMoRan Inc.,
its Administrative Managing
General Partner,
by
/s/ X. Xxxxxx Xxxxxx
-----------------------------
Name: X. Xxxxxx Xxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE CHASE MANHATTAN BANK (successor
by merger to Chemical Bank and The
Chase Manhattan Bank ( National
Association)), individually and as
Administrative Agent, FTX Collateral
Agent, FRP Collateral Agent, and
Documentary Agent,
by
/s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
Xxx Xxxxx Xxxxxxxxx Xxxxx (0xx Xxxxx)
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
Argent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telex: 353006 ABSCNYK
Telecopy: 212-622-0002
ABN AMRO Bank N.V., Houston Agency
by ABN AMRO North America, Inc.,
as agent
by
/s/ H. Xxxx Xxxxxx
-----------------------------
Name: H. Xxxx Xxxxxx
Title: Vice President and Director
by
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Director
DOMESTIC OFFICE AND LIBOR OFFICE:
Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
BARCLAYS BANK PLC,
by
/s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate Director
DOMESTIC OFFICE AND LIBOR XXXXXX
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE FUJI BANK, LIMITED, HOUSTON AGENCY,
by
/s/ Xxxxxxxx Xxxxx
------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President and Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx xxxXxxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx xxxXxxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
NATIONAL WESTMINSTER BANK PLC,
by
/s/ Xxx X. Xxxxxxx
------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH),
by
/s/ Xxx X. Xxxxxxx
------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 212-602-4500
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
by
/s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Joint General Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
cc: 0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
MELLON BANK
by
/s/ X. X. Xxxxxxxxx
------------------------------
Name: X. X. Xxxxxxxxx
Title: First Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
Three Mellon Bank Center, Room 2304
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
Three Mellon Bank Center, Room 2304
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
by
/s/ Akijiro Yoshino
------------------------------
Name: Akijiro Yoshino
Title: Executive Vice President
Houston Office
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Mr. Atsushi Kwai
Credit Admin. Dept.
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Mr. Atsushi Kwai
Credit Admin. Dept.
Telephone: 000-000-0000
Telecopy: 000-000-0000
COPY OF NOTICES:
Three Xxxxx Center #4850
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Mr. Xxxxx Xxx
Telephone: 000-000-0000 (Ext. 102)
Telecopy: 000-000-0000
THE BANK OF NOVA SCOTIA,
by
/s/ A. S. Xxxxxxxxxx
------------------------------
Name: A. S. Xxxxxxxxxx
Title: Sr. Team Leader - Loan
Operations
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxxxxxx, X.X., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
BANK OF AMERICA ILLINOIS,
by
/s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
BANK OF MONTREAL,
by
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 212-605-1451
ADDRESS FOR NOTICES:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 212-605-1451
CIBC INC.,
by
/s/ Xxxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
DOMESTIC OFFICE AND LIBOR OFFICE:
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000, 2 Paces Xxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000, 2 Paces Xxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
CoBANK, ACB,
by
/s/ Xxxx X. XxXxxxx
------------------------------
Name: Xxxx X. XxXxxxx
Title: Senior Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
COOPERATIEVE CENTRALE RAIFFEISEN
-BOERENLEENBANK B.A. RABOBANK
NEDERLAND, NEW YORK BRANCH,
by
/s/ J. Xxxxx Xxxxxx
------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
by
/s/ W. Xxxxxxx Xxxxxxx
------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Vice President, Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
Corporate Services
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
00000 Xxxx Xxxx, Xxxxx 0000, XX 00
Xxxxxx, XX 00000-0000
Attention: Mr. J. Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
SOCIETE GENERALE, SOUTHWEST AGENCY,
by
/s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
0000 Xxxx Xxxxxx
Xxxxxxxx Xxxx Center, Suite 4800
Dallas, TX 75201
Attention: Ms. Tequlla English
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000-0-00
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000-0-00
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
HIBERNIA NATIONAL BANK,
by
/s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Banking Officer
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
NATIONAL BANK OF CANADA,
by
/s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Group Vice President
by
/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxxxx Xxxx
Telephone: 000-000-0000
Telecopy: 212-632-8736
ADDRESS FOR NOTICES:
0000 Xxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
COMMERZBANK Aktiengesellschaft,
Atlanta Agency,
by
/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP and Manager
by
/s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
Xxxxxxxxx 0, Xxxxx 0000
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
Xxxxxxxxx 0, Xxxxx 0000
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE BANK OF TOKYO-MITSUBISHI, LTD.,
Houston Agency
by
/s/ Xxxx X. XxXxxx
------------------------------
Name: Xxxx X. XxXxxx
Title: Vice President and Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
CHRISTIANIA BANK,
by
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
by
/s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: First Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Roising
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Roising
Telephone: 000-000-0000
Telecopy: 000-000-0000
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
by
/s/ Xxxxxxx X. XxXxxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Director
DOMESTIC OFFICE AND LIBOR OFFICE:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
FIRST NATIONAL BANK OF COMMERCE,
by
/s/ J. Xxxxxxx Xxxxx, Xx.
------------------------------
Name: J. Xxxxxxx Xxxxx, Xx.
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-00000000
BANK AUSTRIA AKTIENGESELLSCHAFT
by
/s/ J. Xxxxxxx Xxxx
------------------------------
Name: J. Xxxxxxx Xxxx
Title: Vice President
by
/s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
BANK OF SCOTLAND,
by
/s/ Xxxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President and Branch
Manager
DOMESTIC OFFICE AND LIBOR OFFICE:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
0000 Xxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
SCHEDULE I
APPLICABLE MARGIN FOR LOANS
AND COMMITMENT FEES
FRP
---
Libor ABR Fee
Ratings Spread Spread Percentage
----------------- ------ ------ ----------
BBB/Baa2 or above 0.500% 0.000% 0.175%
BBB-/Baa3 0.625% 0.000% 0.200%
BB+/Ba1 0.875% 0.000% 0.300%
BB/Ba2 1.250% 0.250% 0.375%
BB-/Ba3 or below 1.500% 0.500% 0.500%
FTX
---
Libor ABR Fee
Ratings Spread Spread Percentage
----------------- ------ ------ ----------
BBB/Baa2 or above 0.625% 0.000% 0.175%
BBB-/Baa3 0.750% 0.000% 0.200%
BB+/Ba1 1.125% 0.125% 0.300%
BB/Ba2 1.500% 0.500% 0.375%
BB-/Ba3 or below 1.750% 0.750% 0.500%
SCHEDULE II
Applicable
Bank Percentage Commitment
---- ---------- ----------
THE CHASE MANHATTAN BANK 6.429 $ 22,500,000
BANK OF AMERICA ILLINOIS 5.071 $ 17,750,000
BANK OF MONTREAL 5.071 $ 17,750,000
BANK OF TOKYO-MITSUBISHI, LTD., 5.071 $ 17,750,000
HOUSTON AGENCY
CoBANK, ACB 5.071 $ 17,750,000
COOPERATIVE CENTRALE RAIFFEISEN- 5.071 $ 17,750,000
BOERENLEENBANK B.A. RABOBANK
NEDERLAND, NEW YORK BRANCH
THE FUJI BANK, LIMITED, HOUSTON AGENCY 5.071 $ 17,750,000
MELLON BANK 5.071 $ 17,750,000
ABN AMRO BANK 4.000 $ 14,000,000
THE BANK OF NOVA SCOTIA 4.000 $ 14,000,000
BARCLAYS BANK PLC 4.000 $ 14,000,000
CIBC, INC. 4.000 $ 14,000,000
INDUSTRIAL BANK OF JAPAN, LIMITED 4.000 $ 14,000,000
THE LONG TERM CREDIT BANK OF JAPAN, 4.000 $ 14,000,000
LIMITED
NATIONAL WESTMINSTER BANK, PLC 4.000 $ 14,000,000
THE FIRST NATIONAL BANK OF CHICAGO 3.643 $ 12,750,000
HIBERNIA NATIONAL BANK 3.643 $ 12,750,000
NATIONAL BANK OF CANADA 3.643 $ 12,750,000
SOCIETE GENERALE, SOUTHWEST AGENCY 3.643 $ 12,750,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE 3.643 $ 12,750,000
BANK AUSTRIA 2.429 $ 8,500,000
COMMERZBANK AKTIENGESELLSCHAFT 2.429 $ 8,500,000
ATLANTA AGENCY
CHRISTIANIA BANK 2.429 $ 8,500,000
FIRST NATIONAL BANK OF COMMERCE 2.429 $ 8,500,000
BANK OF SCOTLAND 2.143 $ 7,500,000
------- -------------
TOTAL: 100.000 $ 350,000,000
SCHEDULE VII
List of FM Properties Debt
other than
the FM Credit Agreement
($000's)
--------
Amended and Restated Note Agreement among FM
Properties Operating Co., Freeport-McMoRan
Inc., Xxxxx Oil Co., Chanier Oil Company,
Inc., Xxxxx and Pel-Tex Oil Company, Inc.,
d/b/a Burmont Company, Xxxx X. Xxxxx, Xx.,
Xxx Xxxxxxx Xxxxx (as Sellers) originally $68,000
dated 12/31/85, Amended and Restated 6/11/92,
as the same may be amended or replaced from
time to time
Credit Agreement dated as of February 6, 1992,
by and between Circle C Land Corp. as the
Borrower and Texas Commerce Bank National $40,811
Association as the Bank, as the same may be --------
amended or replaced from time to time
Total $108,811
========
